DCPP VS. L.S. AND R.S. IN THE MATTER OF L.S. (FN-09-0431-15, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-4843-15T2
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
L.S.,
Defendant-Appellant,
and
R.S.,1
Defendant.
_____________________________________
IN THE MATTER OF L.S.,
Minor.
_____________________________________
Submitted September 26, 2017 – Decided November 1, 2017
Before Judges Fasciale and Sumners.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FN-09-0431-15.
1
R.S., the father of the minor child L.S., was only a defendant
for purposes of service.
Joseph E. Krakora, Public Defender, attorney
for appellant (John A. Albright, Designated
Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel;
Jonathan Villa, Deputy Attorney General, on
the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Cory H. Cassar,
Designated Counsel, on the brief).
PER CURIAM
Defendant appeals from a December 1, 2015 fact finding order
entered by Judge Bernadette N. DeCastro that defendant abused and
neglected her daughter L.S. (the child), born August 2012, by
inflicting excessive corporal punishment in disciplining the
child.2 Defendant argues that her conduct did not constitute
excessive corporal punishment because her momentary lapse of
judgment did not result in actual physical injury or imminent harm
to her child. She also contends that absent testimony from any
witness with knowledge of the child's medical conditions, the
judge should not have taken judicial notice that the child's
medical disorders might have rendered her more fragile than the
average child. We find insufficient merit in these arguments to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We
2
A June 3, 2016 order terminated litigation, making this case
ripe for appeal.
2 A-4843-15T2
affirm substantially for the reasons stated by Judge DeCastro in
her thorough, well-reasoned written opinion issued at the close
of the fact finding hearing on the same date. We add the following.
The Division of Child Protection and Permanency (Division)
presented the testimony of Bayonne police officer Nick Lawson and
its caseworker Sharice Kennedy. Lawson stated he was on patrol
in Bayonne Park when he heard a woman yelling and screaming at a
child in a stroller. He then observed the woman, later identified
as defendant, smack the child on her "lower torso, upper thigh
area," with a white rag and then with an open hand. Defendant
then picked the child up from her stroller and threw her to the
ground, where she landed on her back. Lawson demonstrated to the
judge the amount of force defendant used to discipline the child.
According to Lawson, after confronting defendant, she apologized
to him for throwing her child to the ground. He also recalled
defendant telling her child, "you see you got your way." He also
mentioned that an examination by an EMT revealed the child was not
hurt.
Kennedy testified the incident was reported to the Division,
and she met with defendant the day of the incident. Kennedy stated
defendant justified her actions by claiming she was disciplining
her child because she had a temper tantrum and kept falling out
of her stroller and onto the ground. Defendant also told the
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caseworker she did not strike or throw her child to the ground,
but that her child was not giving her "any slack" and "this is
what her [child] wanted [her] to do."
Kennedy also met with the child, describing her as happy and
somewhat nonverbal. The child did not have any visible marks and
bruises on her body but had a small mark on her forehead. Based
upon her conversation with defendant and a review of the child's
pediatrician records, Kennedy revealed that since the child's
premature birth, she has had ventricular issues and a shunt placed
in her head and a tube that runs from her head to her stomach,
which drains fluid from her brain.
Defendant did not testify or present any evidence at the fact
finding hearing.
In her written decision, Judge DeCastro recognized that our
court concluded in Div. of Youth & Family Servs. v. K.A., 413 N.J.
Super. 504, 511 (App. Div. 2010), appeal dismissed as improvidently
granted, 208 N.J. 355 (2011), that abuse and neglect of a child
through excessive corporal punishment is not defined in N.J.S.A.
9:6-8.21(c). Guided by her review of several decisions involving
allegations of excessive corporal punishment, including but not
limited to, K.A., N.J. Div. of Youth & Family Servs. v. P.W.R.,
205 N.J. 17, 36 (2011), and N.J. Div. of Youth & Family Servs. v.
S.H., 439 N.J. Super. 137, 145 (App. Div. 2015), certif. denied,
4 A-4843-15T2
222 N.J. 16 (2015), she found that defendant's treatment of her
child constituted abuse and neglect. The judge determined:
Here[,] the underlying circumstances of a
[two-and-a-half] year old non-verbal child
having a tantrum described by crying and
possibly dragging her feet did not justify the
mother['s] reaction of grabbing the [two-and-
a-half] year old child out of her stroller and
forcefully throwing her feet to the ground.
The fact that she was not seriously injured
is fortunate in light of the fact that [she]
has cardiac issues and a shunt that goes from
her head to her stomach. Clearly, the
Division proved by preponderance of the
evidence that defendant's actions constituted
willful or wanton negligence and showed that
she acted with reckless disregard for the
safety of her daughter.
Based upon our review of the record, we conclude that Judge
DeCastro's decision is supported by substantial credible evidence,
N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49
(2012), and is consistent with the law cited in her decision. See
N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538,
542-43 (App. Div. 2011). Although the child was not injured,
defendant's conduct constitutes excessive corporal punishment
because it placed the child in significant risk of harm, especially
given her significant medical problems.
Affirmed.
5 A-4843-15T2