                             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                        NOT FOR PUBLICATION WITHOUT THE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-4132-14T3


NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,

v.

T.M.,

     Defendant-Appellant.
_____________________________

IN THE MATTER OF D.M. and B.T.,

     Minors.
_____________________________

              Argued June 7, 2017 – Decided          July 3, 2017

              Before Judges Alvarez, Accurso and Lisa.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Union
              County, Docket No. FN-20-0114-11.

              Clara S. Licata, Designated Counsel, argued
              the cause for appellant (Joseph E. Krakora,
              Public Defender, attorney; Ms. Licata, on
              the brief).

              Julie B. Colonna, Deputy Attorney General,
              argued the cause for respondent (Christopher
              S. Porrino, Attorney General, attorney;
              Andrea M. Silkowitz, Assistant Attorney
          General, of counsel; Ms. Colonna, on the
          brief).

          Olivia Belfatto Crisp, Assistant Deputy
          Public Defender, argued the cause for minor
          D.M. (Joseph E. Krakora, Public Defender,
          Law Guardian, attorney; Ms. Crisp, on the
          brief).

PER CURIAM

     Defendant T.M. appeals from a January 31, 2012 order of the

Family Part, now final, finding she abused and neglected her

five-year-old daughter D.M. (Della)1 by excessive corporal

punishment in violation of N.J.S.A. 9:6-8.21c.    Because we agree

with the Division of Child Protection and Permanency and the Law

Guardian that substantial credible evidence in the record

supports the trial judge's finding of abuse and neglect, we

affirm.

     The essential facts adduced at the hearing are easily

summarized.   The referral to the Division came from Della's

father's fiancé.    She testified that when Della came to spend

the prior weekend with them, she had "big bruises on her left

leg, . . . on her arms too.   And she had a big bump . . . on her

forehead."    Della claimed she got the bruises from a beating by

her mother and her mother's boyfriend.    According to the child,


1
  We refer to the child by a fictitious name in order to protect
her privacy.


                                 2                          A-4132-14T3
the bump on her forehead happened when her mother threw a

hairbrush at her.

     Because this was not the first time the fiancé had seen

bruises on the child, and the bruises were "still fresh," the

fiancé photographed all the bruises she saw, including those on

the child's buttocks, thighs and "by her private area."     At the

hearing, she identified each of the photos she took, when she

took them, and described the bruises she saw depicted in the

photos, their color and size.2

     Della's father testified he viewed the photographs taken by

his fiancé of his daughter and, after seeing the actual bruises,

decided his fiancé should contact the Division to report what

they saw.   He confirmed the photos admitted in evidence, which

he reviewed in the course of his testimony, were consistent with

the bruising he observed on his daughter.   He also testified

that sometime around the weekend when he and his fiancé observed

those bruises, T.M. told him not to bathe Della when she dropped

the child off for the weekend.   He testified he thought it odd




2
  When T.M.'s counsel objected to having only been provided with
black and white photocopies of the pictures, the judge permitted
all counsel to examine the color photographs the Division had
lodged with the court prior to cross-examining the witness. She
also required the Division to provide all counsel with color
photocopies of the photos.

                                 3                          A-4132-14T3
that T.M. would not want the five-year-old to wash for two or

three days.

    Upon receipt of the referral, a Division caseworker spoke

to T.M. and confirmed Della spent the prior weekend with her

father and his fiancé.   The caseworker testified that T.M.

admitted disciplining Della by "us[ing a] belt to hit her on the

butt."

    The caseworker interviewed Della and her nine-year-old

sister, both of whom reported that their mother and her

boyfriend hit them with a belt when they were bad.    The nine-

year-old told the caseworker that she had heard her mother and

her mother's boyfriend beat Della the prior Wednesday or

Thursday for her "bad behavior in school."   Della was in her

mother's bedroom with her mother and the boyfriend.   Although

the nine-year-old had not seen her sister get hit, the child

told the caseworker "[s]he heard her [sister] cry and scream."

Upon examining Della with T.M.'s consent, the worker saw a

light, three-inch bruise on the child's inner thigh, which

appeared to be healing and a circular bruise, one or two inches

above her right knee.    The worker observed no other bruising.




                                 4                         A-4132-14T3
      The caseworker testified she interviewed T.M.'s boyfriend3

and a woman temporarily residing with the family.    The boyfriend

admitted physically disciplining the nine-year-old on three or

four occasions.    Although he also admitted disciplining Della

the week before, he claimed it was the first time he had done

so.   According to the case worker, the boyfriend told her he hit

Della with a belt for misbehaving at school, being disrespectful

to her teachers and throwing toys at other students.   The

boyfriend, who admitted being 5'10" and weighing 285 pounds,

claimed he hit Della, a slim child standing about three feet, no

more than ten times.   Asked to estimate how hard he hit the

child on a scale of one to ten, with ten being the hardest, he

rated it a four.   The woman living with the family told the

caseworker that T.M. used non-physical forms of discipline with

the children but also disciplined them by beating them with a

belt.

      The caseworker testified she re-interviewed T.M. and both

children several days later, after receiving the photographs


3
  The boyfriend was identified as defendant O.G. The Division
later learned he pled guilty in 2002 to sexual assault of a
child under thirteen and criminal sexual contact with another
child under sixteen and was sentenced to five years in State
prison and required to register for community supervision for
life under Megan's Law. Although the judge found he had abused
Della by administering excessive corporal punishment, he did not
appeal and is thus not part of this proceeding.

                                 5                           A-4132-14T3
from the fiancé.     The caseworker claimed she was startled by the

pictures, because it appeared Della had been beaten "pretty

bad."   She showed the pictures to Della, who confirmed the

bruises depicted were the result of the beating she had received

the prior week from her mother and the boyfriend, who had hit

her with a belt and a hairbrush.

    The caseworker also showed the photos to T.M., who admitted

the beating may have resulted in the bruising depicted on the

child's buttocks.    She also admitted the bruise to Della's inner

thigh, near "the private area" and her outer thigh could also

have been from the belt.

    The worker testified that after consulting with Dr.

Gladibel Medina, the board certified pediatrician and child

abuse specialist who examined both children, the Division

substantiated both T.M. and her boyfriend for abuse and neglect

and removed the children from their home.     When asked why, she

explained, "for a five-year-old, I mean, these were severe

beatings. . . .     [I]t wasn't like a light tap or . . . one or

two hits.   It was all over her body.   [I]t was clear to us from

the pictures that it was excessive and it was forceful."      The

worker also explained that this was the Division's fourth

encounter with this family, and that T.M. had previously

attended parenting classes, and thus had been instructed on

                                  6                         A-4132-14T3
appropriate ways of disciplining her children.4      Indeed, T.M. had

agreed not to use corporal punishment on the children in

connection with one of the earlier referrals.

     The Division's expert, Dr. Medina, testified to her

examination of the children and the opinions she developed as a

result of those examinations and the photos taken of Della's

bruises by her father's fiancé.       The doctor recounted the

statements both children made to her that their mother would hit

them with a belt when they misbehaved.      Dr. Medina reviewed the

color photographs taken by the fiancé and described multiple

linear bruises she claimed demonstrated "[r]epeated forceful

impacts" delivered with enough force to cause trauma in the form



4
  The Division's first contact with T.M. was in 2004 when Della's
sister, then two years old, was found wandering outside
unattended. T.M. admitted leaving the child at home alone for
over an hour while she ran an errand. The Division
substantiated T.M. for neglect, and she was criminally charged
with child endangerment and entered the pre-trial intervention
program. In 2007, the sister's daycare contacted the Division
when the child revealed she had received the bruise on her lip
when her mother "popped" her because she had misplaced a domino.
The Division closed that referral as unfounded when the worker
did not observe any bruising, and the child clarified her mother
would only "tap" her on the lips when she lied. T.M., however,
agreed to forgo corporal punishment of the children in the
future. In 2009, the school reported the child, then seven
years old, had red and blue bruises on her forearm and inner
thigh. The child claimed her father, who was caring for her
while her mother was in the hospital, had beaten her for poor
grades. Although both parents admitted to hitting the child,
those allegations were also deemed unfounded.

                                  7                              A-4132-14T3
of broken blood vessels.    Dr. Medina described several bruises

of a purple-greenish discoloration on the child's buttocks and

thighs, numerous red, green and purple bruises to the area of

Della's lower buttocks, and a greenish abrasion to her left

upper thigh.   She testified on the basis of the photos that

sixty percent of the child's buttocks had been bruised and fifty

percent of both thighs.

    Although testifying she had initially characterized the

bruising depicted in the photos as life-threatening, she

explained that was because she believed the pictures of Della's

legs were of her abdomen, and thus close to vital organs, and

that all were taken at the same time.    She clarified that her

ultimate opinion, that Della had been physically abused by

excessive force, was not changed based on several of the photos

having been taken earlier, and that the child's injuries were

not life-threatening.     Asked about the lack of bruising when she

examined the child only days after the photos were taken, Dr.

Medina testified the absence of any significant bruising was

consistent with the timeframe of three days to two weeks in

which those injuries would normally heal.

    The Division played a tape of Della's interview by the

Union County Prosecutor's Office at the fact-finding hearing.

In it, the child described the beating administered by her

                                  8                         A-4132-14T3
mother and the boyfriend and claimed both had beaten her at

least ten times before.

    Although T.M. did not testify, she presented the testimony

of the Director of Della's preschool and one of her teachers.

Both claimed Della was prone to make up stories and neither

claimed ever to have seen any bruises on the child.     A third

witness, T.M.'s friend and Della's godmother, testified for T.M.

as well.   Although the friend denied ever seeing bruises on

Della, she acknowledged that T.M., in addition to taking away

toys or privileges, would "spank" her daughters.   She claimed

T.M. would only do so as a last resort, "on occasion" with a

belt while they were dressed.   She also testified to seeing T.M.

hit the children on occasion with her hands when their pants

were down.   She maintained she never saw T.M. inappropriately

discipline her children.

    After the conclusion of the testimony, Judge Kenny

determined that T.M. had abused Della by engaging in excessive

corporal punishment.   In a thorough and thoughtful opinion

delivered from the bench, the judge recapped the testimony of

the witnesses and made credibility findings.   She reviewed the

relevant exhibits, most notably the color photographs taken by

Della's father's fiancé and discussed, in detail, the

controlling cases.

                                9                           A-4132-14T3
    Noting that T.M. admitted to striking Della with a belt and

inflicting at least one of the bruises depicted in the photos in

evidence, the judge found there was no "serious question" but

that the injuries inflicted on the child were inflicted by T.M.

and her boyfriend, and "really nothing to contradict the

Division's prima facie case."    The judge found "the Division

. . . met its burden by a preponderance of the evidence and more

as to how those injuries were inflicted on her."

    Addressing the photographs, the judge noted the opportunity

she had

          to review those pictures. And we can analyze
          case law, but I don’t know how you . . .
          beat a child in such a way to show the
          bruises that I see in the exhibits that the
          State offered of this child which the child
          corroborated. The child testified in her
          [recorded statement to the prosecutor],
          that's me, those are the bruises on me that
          they – that they hit me with [a belt and a
          hairbrush]. I . . . don't know how you can
          say that it's not excessive, particularly in
          light of the purported reason for . . .
          giving her, a . . . barely five-year-old
          child this kind of beating.

    Turning to the question of whether the punishment inflicted

was excessive, the judge noted

          an incident will be considered excessive if
          there's a pattern of inappropriate corporal
          punishment or if the motivation for the
          corporal punishment is unreasonable, and I
          find both of those instances have been met –


                                 10                        A-4132-14T3
            the proofs have been met by the Division in
            this case.

Observing that "[p]unishment is excessive if the child suffers

lacerations or the punishment is severe given the circumstances

and the child's age," the judge relied on Dr. Medina's testimony

regarding the repeated forceful impacts necessary to have

inflicted the extent of the bruising on the child's thighs and

buttocks.

    Judge Kenny concluded:

                 So with all of this, I have a barely
            five-year-old child being left with the –
            the kinds of welts and abrasions that I see
            in the pictures here. I don't have the color
            photographs out here with me, but . . .
            they're pretty horrifying to think that a
            tiny little girl five years old could be
            beaten in that way or to be beaten at all
            with an implement and without her clothes
            on. For what? For as much as I can
            determine, it's for being bad at school
            . . . .

            [I]'m satisfied that the Division . . . has
            established by a preponderance of the
            evidence that there were repeated acts –
            repeated times that there were beatings of —
            of this little child. And I'm satisfied that
            as minimum, on this last occasion, the welts
            left there, the use of a belt, the use of
            two people, two people beating this child
            'til she's crying and screaming that her
            sister can hear her, that — that two or
            three Days later someone seeing the bruising
            is . . . upset and horrified by it enough to
            call DYFS which she was right to do, I'm
            satisfied that excessive corporal punishment
            was used.

                                11                          A-4132-14T3
    The only issue defendant raises for our consideration

concerns the absence of the original photographs in the record

on appeal.   Following the filing of the notice of appeal,

defendant's appellate counsel sought the color photographs

admitted at trial.   Unable to obtain them from the court or any

of the other parties, counsel made a motion for remand "to

clarify whether the judge saw actual photographic prints or was

looking at the scanned color photocopies."   If the judge relied

on color prints, counsel requested that we order the Division to

produce the photographs.

    We granted the motion for remand.    Judge Kenny convened

trial and appellate counsel and made clear for defendant's

appellate counsel that original photographs were produced at the

fact-finding hearing.   Although defendant's trial counsel was

not present, the court and all other trial counsel confirmed

that each of the lawyers and the witnesses were looking at one

set of fourteen original photographs that were marked in

evidence.    Unfortunately, the original photographs, which the

Division believed were in the court's file at the conclusion of

the fact-finding hearing and court staff believed were returned

to Division's counsel, were lost, leaving only the color




                                12                           A-4132-14T3
photocopies the Division provided to the court and counsel for

their use at trial.

    Judge Kenny wrote to this court, providing a comprehensive

recap of the situation, and confirmed that in rendering her

decision, she viewed and referenced the fourteen color

photographs admitted into evidence without objection on the

first day of the fact-finding hearing.   Judge Kenny further

noted "[t]he color copies, which are still available, depict a

good deal of the bruising on [Della's] legs, inner thighs, and

buttocks, but, unfortunately, not as vividly as the originals."

    The judge, however, underscored that her "finding of the

use of excessive corporal punishment did not rest on the

photographs alone, compelling as they are" but also on the

credible testimony of the witnesses, including Della, and T.M's

admissions of striking the child with a belt.   The judge also

referenced the odd request by T.M. to Della's father not to

bathe the child.   The father and his fiancé ignored that request

and in the course of bathing Della, the fiancé discovered the

bruising.   Judge Kenny found T.M.'s apparent effort to conceal

the child's bruises, demonstrated "her consciousness of the

excessive nature of the corporal punishment."

    Defendant contends we should vacate the judgment "because,

without the missing photographic prints, there is no evidence

                               13                          A-4132-14T3
that the corporal punishment [T.M.] administered was excessive."

Counsel further argues that in the absence of "the actual

photographs, an appropriate merits argument cannot be made for

[T.M.]" depriving her of the effective assistance of appellate

counsel.   We reject those arguments as utterly without merit.

See State v. Gaskin, 325 N.J. Super. 563, 571-72 (App. Div.

1999), certif. denied, 164 N.J. 190 (2000) (rejecting as without

merit the defendant's argument that the trial court's failure to

preserve two photographs introduced by the State without

objection at trial required vacation of the conviction).

    Our review of the trial court's factual findings in a Title

9 abuse and neglect proceeding is limited to determining whether

those findings are supported by adequate, substantial, and

credible evidence in the record.    N.J. Div. of Youth & Family

Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002).      If

the findings have such support in the record, we are bound by

them in deciding the appeal.   Rova Farms Resort, Inc. v.

Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

    Title 9 defines an "abused or neglected child" as including

           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, as herein defined, to exercise a
           minimum degree of care . . . (b) in
           providing the child with proper supervision

                               14                           A-4132-14T3
          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. 9:6-8.21c(4)(b).]

    Although "excessive corporal punishment" is not defined,

the Supreme Court has noted that "by qualifying the prohibition

with the term, 'excessive,' the statutory language plainly

recognizes the need for some parental autonomy in the child-

rearing dynamic that, of necessity, may involve the need for

punishment."    N.J. Div. of Youth & Family Servs. v. P.W.R., 205

N.J. 17, 36 (2011).   Determining when corporal punishment has

become "excessive" requires the exercise of the judgment reposed

in the judges of the Family Part.    While "[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' within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b),"

ibid., "there is absolutely nothing reasonable about inflicting

harm, in the form of paddling, upon a five-year-old child

because the child told a neighbor that their home was without

electricity."   Dep't of Children & Families v. C.H., 414 N.J.

Super. 472, 481 (App. Div.), adhered to on reconsideration, 416

N.J. Super. 414 (App. Div. 2010), certif. denied, 207 N.J. 188

(2011).

                                15                          A-4132-14T3
    Having reviewed the record, we are convinced that, as in

C.H., defendant's hitting her five-year-old daughter repeatedly

with a belt with enough force to leave sixty percent of the

child's buttocks and fifty percent of both thighs badly bruised

is excessive corporal punishment within the meaning of N.J.S.A.

9:6-8.21c(4)(b).   The unavailability of the actual photographs

of the child's bruises, at this point in the proceedings, does

not change that result or deprive defendant of any meritorious

argument.

    Our inability to see the actual photographs is no different

than our inability to see and hear the witnesses testify.     It is

in the nature of appellate review, and explains precisely why we

are so dependent on the diligence and good judgment of the

judges of the Family Part.   We defer to a trial court's factual

findings because the trial judge "has the opportunity to make

first-hand credibility judgments about the witnesses who appear

on the stand" and get "a feel of the case that can never be

realized by a review of the cold record."   N.J. Div. of Youth &

Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citation and

internal quotations marks omitted).   The record we review "can

never adequately convey the actual happenings in a courtroom."




                               16                           A-4132-14T3
N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448

(2012).5

     Having reviewed the record and Judge Kenny's careful

findings, including her assessment of the testimony of the

witnesses who saw the actual bruises, and her own assessment of

the original photographs, we find no basis to second-guess the

judge's considered judgment in this matter.

     Affirmed.




5
  While perhaps not conveying the bruises inflicted on this small
child as vividly as the actual photographs admitted at the fact-
finding hearing, the photocopies in the appendix are certainly
sufficient to convey the injuries Judge Kenny described.

                               17                           A-4132-14T3
