DCPP VS. J.H., S.M., M.W., AND J.M., IN THE MATTER OF J.W., B.M., MAL.W., M.W., III, AND MAK.W. (FN-09-0223-18, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )

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NOT FOR PUBLICATION WITHOUT THE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-4772-18T4
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
J.H.,
Defendant-Appellant,
and
S.M., M.W. AND J.M.,
Defendants.
_________________________
IN THE MATTER OF J.W.,
B.M., MAL.W., M.W., III, and
MAK.W., minors.
__________________________
Argued November 5, 2020 – Decided December 7, 2020
Before Judges Ostrer, Accurso and Enright.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FN-09-0223-18.
Robert H. McGuigan, Designated Counsel, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Robyn A. Veasey, Deputy Public
Defender, of counsel; Robert H. McGuigan, on the
briefs).
Amanda D. Barba, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Sookie Bae, Assistant Attorney
General, of counsel; Amanda D. Barba, on the brief).
Rachel E. Seidman, Assistant Deputy Public Defender,
argued the cause for minors (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Meredith Alexis
Pollock, Deputy Public Defender, of counsel; Rachel E.
Seidman, of counsel and on the brief).
PER CURIAM
Defendant J.H.1 (Janice) appeals from a May 11, 2018 order finding she
abused and neglected J.W. (Jerilyn) by failing to protect her from excessive
corporal punishment inflicted by Jerilyn's father, defendant M.W. (Mel). We
affirm, substantially for the reasons set forth in Judge Anthony V. D'Elia's
thoughtful oral decision.
1
We use initials and pseudonyms to refer to the parties to protect their privacy
and preserve the confidentiality of these proceedings. R. 1:38-3(d)(12).
A-4772-18T4
2
Janice is Mel's paramour. She and Mel have three children together,
namely Mal.W. (Mark), M.W. III (Mel, III) and Mak.W. (Mike). Janice also
has a daughter, B.M. (Bonnie) from a prior relationship with J.M. (Jim). Jerilyn
was born in 2003 to Mel and S.M. (Sue). Janice is the only defendant involved
in this appeal.
Prior to the instant litigation, Janice and Mel dated on and off for seven
years. Mel and Jerilyn moved to Janice's apartment approximately one week
before plaintiff New Jersey Division of Child Protection and Permanency
(Division) received a referral about Jerilyn. Specifically, on January 8, 2018,
Jerilyn's school nurse contacted the Division and informed the Division that
Jerilyn had marks on her arms consistent with being hit with a belt or an
extension cord. That evening, Division workers went to the address provided in
the referral, but no one was home.
The following day, a Division caseworker went to Jerilyn's school and
interviewed her. When the caseworker questioned Jerilyn about the marks on
her body, Jerilyn admitted that on January 5, 2018, Mel hit her with an electrical
cord on her arms, legs, and back. The teenager further confirmed the site of
some of her injuries still bled.
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Jerilyn explained the beating occurred after she told Mel she allowed her
girlfriend to visit Janice's apartment to retrieve a cellphone. Mel deemed this
visit to be a violation of the "house rule" that no guests were permitted inside
the home without adult supervision. He decided to "discipline" Jerilyn by hitting
her with an extension cord multiple times on her arms, legs, and back. She tried
unsuccessfully to defend herself.
According to Jerilyn, Janice and Bonnie were in the kitchen, adjacent to
the area where the beating occurred, but Janice made no attempt to stop Mel.
Jerilyn told the caseworker Mel previously used a belt to discipline her and hit
her with a belt buckle once, injuring her right finger. Jerilyn stated, "I'm not
afraid of my father, I'm used to getting disciplined by my father this way when
I do something wrong. I never thought that this time it was going to be this bad,
but I'm ok now."
Jerilyn advised the caseworker that the day after the incident, Mel tried to
treat her wounds by rubbing alcohol on them. He stopped when Jerilyn yelled
the alcohol burned her. Neither Mel nor Janice took further action to treat
Jerilyn's injuries or obtain medical treatment for her.
The caseworker observed Jerilyn had "six bruises on her right arm, seven
on her left arm, five on her back, two on her left leg and two on her right leg, all
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in different stages of healing." Additionally, the caseworker noted Jerilyn wore
a bandage on her right upper arm.
The Division contacted the Hudson County Prosecutor's Office, Special
Victim's Unit (SVU). During a videotaped interview with a detective, Jerilyn
provided statements consistent with her disclosures to the Division caseworker.
When asked by the detective whether anyone saw Mel beat her with an extension
cord, Jerilyn responded that only her dad and Janice witnessed the incident, but
Janice did not intervene. Jerilyn stated, "it got to the point where I'm hurting,
and sometimes, like when my dad beats me too much [Janice] will jump in and
say, okay that's enough. But this time she didn't say anything. She was just
sitting there staring."
The detective also interviewed Mel, who confessed he hit Jerilyn with an
extension cord and inflicted bodily injury. He stated he took this ac tion to
discipline his daughter because she was "out of control." Mel further admitted
he previously hit Jerilyn with a belt, but claimed he never left a mark or bruise.
When Bonnie was interviewed by the SVU, she denied being hit by Mel
or Janice. However, she admitted that during the incident, she was in the kitchen
with Janice and heard Jerilyn yelling at Mel to stop hitting her. She knew Jerilyn
was beaten because she heard Jerilyn screaming and crying. Bonnie added,
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"Jerilyn normally does not start crying." Bonnie also remarked that after the
incident, Mel left for work and Jerilyn showed her a mark on her arm. Jerilyn
told Bonnie her father caused this mark.
Defendants' three younger children were not interviewed, due to their age.
However, the Division caseworker confirmed she did not observe any visible
marks or bruises on these children.
Mel was arrested for aggravated assault, N.J.S.A. 2C:12-1(b)(1) and
endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Janice declined to be
interviewed but she, too, was arrested for endangering the welfare of a child,
due to her failure to assist Jerilyn during the incident or subsequently inform the
authorities about what occurred. The Division executed a Dodd 2 removal for
defendants' five children.
Following the Dodd removal, the Division took Jerilyn and her half-
siblings to a local emergency room for pre-placement physicals. The emergency
room pediatrician, Dr. Nileshwai Patel, observed Jerilyn suffered from moderate
swelling and multiple abrasions on her arms, legs, and back. He found some of
her abrasions were surrounded by bruises and hyper-fragmented lesions.
2
A "Dodd" removal refers to the emergency removal of a child from a home
without a court order, pursuant to The Dodd Act. N.J.S.A. 9:6-8.21 to -8.82.
A-4772-18T4
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Moreover, Dr. Patel noted Jerilyn complained of pain when she moved her arm.
He prescribed Bacitracin for her wounds and Motrin for her pain.
On January 12, 2018, Janice agreed to be interviewed by a Division
caseworker. During her discussion with the caseworker, Janice denied Mel lived
with her. Additionally, Janice told the caseworker she was a victim of domestic
violence, and had filed for a restraining order, but withdrew her request for
restraints when she learned Mel would be notified of her application. Janice
asked the caseworker not to reveal this disclosure to Mel. Janice denied her
children witnessed her being abused, but then equivocated, stating the "'the little
ones' may have seen him choking her."
Janice also denied seeing Mel beat Jerilyn on January 5, 2018, but
admitted she heard Jerilyn screaming during the incident. Janice maintained she
did not see any marks or bruises on Jerilyn after the beating. Further, she told
the caseworker Jerilyn acted "regular" and they were "laughing and joking"
throughout the following weekend.
On May 11, 2018, Judge D'Elia conducted a fact-finding hearing. At the
outset of the trial, Mel's counsel objected to the introduction of the Division's
case report on Janice, wherein she indicated she was a victim of domestic
violence. Janice's counsel acquiesced to the exclusion of this evidence.
A-4772-18T4
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The two caseworkers assigned to this matter, Francisco Monterrosa and
Schryka Massey, testified on behalf of the Division about their investigation of
the incident. The Division also produced the SVU videotaped interviews of
Janice, Mel and Jerilyn, and photos showing Jerilyn's marks and bruises days
after the incident. Moreover, the judge admitted Jerilyn's medical records, the
Division's records regarding the January 8, 2018 referral, and an investigation
summary from a 2016 referral regarding Mel purportedly hitting Jerilyn with a
belt and a closed fist. Neither Mel nor Janice testified nor presented witnesses
in their defense.
During the closing remarks of Janice's counsel, she stated, in part:
Now, in this particular instance there was no way for
[Janice] to know the difference that something more
severe was happening this time versus any other time
that [Mel] would have disciplined the child. And
Jerilyn did not follow up in any way with [Janice]. She
didn’t come to her and say, I am injured, I am in pain,
I am hurt. She spent the entire weekend with [Janice].
And it wasn’t until she was -- well, whether she was at
the hospital, whether she was at the school, but
certainly it wasn’t until Monday that she said anything
about being in pain.
....
Which is just not something not strong enough to really
say that [Janice] had frankly done anything wrong . . . .
She was not responsible for this. She was not the
person who was involved in the disciplining. And the
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child didn’t report it to [Janice], who . . . was the adult
in the home immediately after it happened, or certainly
within the three days after it happened.
At the conclusion of the trial, Judge D'Elia found the Division proved by
a preponderance of evidence that pursuant to N.J.S.A. 9:6-8.21(c), Mel abused
Jerilyn when he "used excessive corporal punishment . . . by hitting [Jerilyn]
several times with an electrical cord on her arms, back [and] leg, leaving marks
[and] bruising." In his oral decision, the judge concluded "[t]his was a whip ping
with an electrical cord that went on for a good period of time, that caused bad,
bad bruises, that caused [Jerilyn] to scream and to cry and to yell[.]"
Additionally, Judge D'Elia credited Jerilyn's statements, concluding everything
she "told the investigator was true. She seemed relaxed, she seemed open. She
explained freely why she never really told anybody about the prior incidents,
because she didn't want it to be blown up bigger than it was. And she didn't
want anybody to get in trouble."
Regarding Janice, the judge stated:
She’s in the kitchen, she heard everything, she knew
what was going on. She knew how bad it was. She
could hear the screams. This was not just one whip, or
even two whips. This was multiples. So, it was going
on for a while.
....
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I do find that she’s the paramour of the parent, so she
does have a responsibility to step in under the law . . . .
[T]he State legislature . . . wants girlfriends and
boyfriends of parents, who otherwise care for minors
when they’re around, to get involved, or they could be
charged with abuse and neglect. Why? Because the
overriding concern of the law is not to protect the
relationship with the girlfriend or boyfriend with the
parent, but to make sure that the kid is best protected
. . . . I believe [Jerilyn] that [Janice's] done it in the past.
That she stopped [Jerilyn] from getting beat by the
father when he thought that he was applying the proper
punishment. But, this time she dropped the ball. I’m
finding that she did commit abuse and neglect by not
getting involved in light of the severe injuries that
occurred, the extensive whipping that was ongoing
right . . . in the next room. And that for that reason I’m
finding that the Division has proven its case against her
by a preponderance of the evidence as well.
Judge D'Elia's May 11, 2018 fact-finding order reflected that pursuant to
N.J.S.A. 9:6-8.21(c), Janice's "failure to intervene constituted gross negligence
[and] a failure to exercise a minimum degree of care to prevent the child from
suffering significant injuries physically [and] emotionally as a result of the
excessive corporal punishment."
On appeal, Janice argues this order should be vacated because it was not
based on adequate and substantial evidence in the record. In support of this
contention, she argues she is a victim of domestic violence, and "would likely
have been in the grip of fear" during the incident and that "the entire
A-4772-18T4
10
psychological dynamic likely effectively inhibited her from acting, at least
temporarily." (Emphasis added).
The pertinent legal standards under Title Nine are well established. An
abused or neglected child under Title Nine is one 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, as herein defined, 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. 9:6-8.21(c)(4).]
The Supreme Court established that the phrase "minimum degree of care"
under the statute "refers to conduct that is grossly or wantonly negligent, but not
necessarily intentional." G.S. v. Dep't of Human Servs., 157 N.J. 161, 178
(1999). A parent or guardian falls short of the "minimum degree of care"
standard "when he or she is aware 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." N.J. Div. of Child Prot. & Permanency v. A.B., 231 N.J. 354, 369
(2017) (quoting G.S., 157 N.J. at 181).
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N.J.S.A. 9:6-8.21(a) defines a parent or guardian as "any natural parent,
. . . paramour of a parent, or any person, who has assumed responsibility for the
care, custody, or control of a child or upon whom there is a legal duty for such
care."
Whether a parent, guardian, or a paramour of a parent has engaged in acts
of abuse or neglect involves a totality of the circumstances analysis. N.J. Div.
of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011).
Specifically, "the focus is on the harm to the child and whether that harm should
have been prevented had the guardian performed some act to remedy the
situation or remove the danger." N.J. Div. of Child Prot. & Permanency v.
J.L.G., 450 N.J. Super. 113, 121 (2015).
Our scope of review of a Family Part judge's fact-finding determination
of abuse or neglect is limited. We must defer to the factual findings of the
Family Part if they are sustained by "adequate, substantial, and credible
evidence" in the record. N.J. Div. of Child Prot. & Permanency v. N.B., 452
N.J. Super. 513, 521 (App. Div. 2017) (citation omitted). That deference is
justified because of the Family Part's "special jurisdiction and expertise in
family matters." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328,
343 (2010) (citation omitted). The reviewing court grants particular deference
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to the trial court's credibility determinations, and only overturns its
determinations regarding the underlying facts and their implications when the
"findings went so wide of the mark that a mistake must have been made." N.J.
Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal
quotation omitted). That said, an appellate court does not give special deference
to the trial court's interpretation of the law, which it reviews de novo. D.W. v.
R.W., 212 N.J. 232, 245-46 (2012).
Applying these well-settled principles, we are satisfied Judge D'Elia did
not abuse his discretion in finding Janice was grossly negligent by failing to
protect Jerilyn from the excessive corporal punishment Mel inflicted on Jerilyn
on January 5, 2018. Indeed, Janice does not deny she did not assist Jerilyn
during the "extensive whipping" incident, even though she was present in an
adjacent room. Moreover, she does not dispute she intervened on Jerilyn's
behalf on prior occasions when she believed Mel's corporal punishment had
become excessive.
Although there is some evidence in the record to support Janice's claim
that she also was a victim of Mel's domestic violence, it is insufficient to allow
us to consider whether Janice's fear of Mel impeded her from intervening when
he beat Jerilyn with an electrical cord or coming to the child's aid afterward, and
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from testifying to her fears at the fact-finding hearing. If Janice believes she
could marshal sufficient evidence to demonstrate she failed to act because she
was under duress, her remedy is through a motion for relief from the judgment
under Rule 4:50-1. We express no opinion about the likelihood of success of
such an application.
Affirmed.
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