                                      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                                NOT FOR PUBLICATION WITHOUT THE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-0390-18T2

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

J.R.,

          Defendant,

and

T.B.,

     Defendant-Appellant.
___________________________

IN THE MATTER OF TY.B.
and TYR.B.,

     Minors.
___________________________

                    Submitted November 18, 2019 – Decided December 24, 2019

                    Before Judges Messano and Vernoia.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Monmouth County,
            Docket No. FN-13-0082-17.

            Joseph E. Krakora, Public Defender, attorney for
            appellant (Robyn A. Veasey, Deputy Public Defender,
            of counsel; Ilea Anne Kozak, Designated Counsel, on
            the briefs).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Jane C. Schuster, Assistant Attorney
            General, of counsel; Alicia Y. Bergman, Deputy
            Attorney General, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minor Tyr.B. (David Ben Valentin,
            Assistant Deputy Public Defender, on the brief).

PER CURIAM

      Defendant T.B., the father of Ty.B. (Tricia) and Tyr.B. (Tom), appeals the

Family Part's May 23, 2017 order following a fact-finding hearing, see N.J.S.A.

9:6-8.44, that found defendant abused Tricia. See N.J.S.A. 9:6-8.21(c) (defining

an "abused or neglected child"). 1 Defendant contends the evidence produced by

the Division of Child Protection and Permanency (the Division) was insufficient

to prove that the "isolated incident" in which he disciplined Tricia was "grossly

negligent or unreasonable." Defendant also argues the Division urged, and the


1
  We use initials and fictitious names to protect the privacy of the parties and
child. R. 1:38-3(d)(12).


                                                                         A-0390-18T2
                                       2
judge "impliedly" drew, an adverse inference against him because defendant

asserted his Fifth Amendment right against self-incrimination and chose not to

testify at the hearing.

       The Division contends the evidence was more than sufficient to prove

defendant abused Tricia, and the judge never drew an adverse inference in

response to defendant's exercise of his constitutional rights. Along with Tricia's

Law Guardian, the Division urges us to affirm the order.

       Having considered the record in light of applicable legal principles, we

affirm.

                                        I.

       The Division received a referral in August 2016 as the result of a domestic

violence incident between defendant and Tricia's mother, J.R. (Jenny).

Defendant was arrested. Jenny moved to a shelter with Tom; Tricia, who was

fifteen-years old at the time, moved in with her maternal aunt, B.R. (Brenda).

Jenny obtained a temporary restraining order under the Prevention of Domestic

Violence Act, 2C:25-17 to -35, and the hearing for a final restraining order

(FRO) was set for September 12, 2016. 2




2
    The record reveals the court issued an FRO to Jenny.
                                                                          A-0390-18T2
                                        3
      In response to a phone call from Jenny, on September 14, the Division's

caseworker went to Brenda's home and spoke with Tricia. Tricia said defendant

texted her repeatedly on September 11 because he wanted her to appear as a

witness at the FRO hearing the following day. Tricia refused. At 1 a.m. on

September 12, defendant appeared at Brenda's home and told Tricia she must

come to court later that day. When the child refused, defendant slapped her face,

grabbed her wrist or arm, and pulled her hair, ripping three braids from her scalp.

The Division's caseworker observed the bald spots while interviewing Tricia,

and the judge admitted photographs of Tricia's scalp into evidence.

      After the incident, Tricia went missing from her aunt's home. Police found

her at defendant's home several days later. The caseworker testified as to a

conversation she had with defendant in Tricia's presence at the police

department. Defendant admitted going to Brenda's home because he wanted

Tricia to testify at the FRO hearing. He claimed that when he walked into

Tricia's room, the smell of marijuana was overwhelming, and he confronted his

daughter about it. When Tricia spoke back to him, defendant acknowledged

grabbing Tricia's arm and "mushing" her head, which cause her to fall

backwards. Defendant did not recall pulling his daughter's hair from her head.




                                                                           A-0390-18T2
                                        4
      Brenda testified at the fact-finding hearing that she found human hair in

the garbage can and questioned Tricia about it. Tricia told her aunt about the

early morning incident, which Brenda had slept through. Brenda observed small

bald spots on the child's scalp. Brenda testified Tricia "said she didn't want to

testify [at the FRO hearing] because . . . she didn't want to lie on her mother."

      After the Division rested, defense counsel sought an adjournment. Citing

this latter testimony, she told the judge defendant needed to consult with his

criminal lawyer.3 Counsel said defendant had intended to testify, but now was

"concerned about a witness tampering charge." Defendant told the judge Tricia's

claim was not contained anywhere in the Division's reports.

      The judge denied the request and conducted a voir dire of defendant at

counsel's request. Although initially indicating he intended to testify, after

taking the witness stand, defendant changed his mind and elected otherwise.

After hearing closing arguments, the judge rendered an oral decision, which we

discuss more fully below, and entered the order under review.




3
  It is unclear from the record what were the exact charges, if any, defendant
faced as a result of the August and September incidents.
                                                                           A-0390-18T2
                                        5
                                        II.

      Defendant first contends that any harm he caused Tricia was minimal,

accidental, and the result of his reasonable attempt to discipline his daughter.

We disagree.

      "[A]ppellate courts 'defer to the factual findings of the trial court because

it 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 & Family Servs. v.

M.C. III, 201 N.J. 328, 342–43 (2010) (quoting N.J. Div. of Youth & Family

Servs. v. E.P., 196 N.J. 88, 104 (2008)). Moreover, "[b]ecause of the family

courts' special jurisdiction and expertise in family matters, appellate courts

should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J.

394, 413 (1998). However, when the issue presented turns on a legal conclusion

derived from the Family Part's factfinding, "we are not required to defer." N.J.

Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 542–43 (App. Div.

2011).

      "In general, 'Title 9 controls the adjudication of abuse and neglect cases.'"

Dep't of Children & Families, Div. of Child Prot. & Permanency v. E.D.-O., 223

N.J. 166, 177 (2015) (quoting M.C. III, 201 N.J. at 343). "The focus of Title 9


                                                                           A-0390-18T2
                                        6
'is not the "culpability of parental conduct" but rather the "protection of

children."'" N.J. Div. of Child Prot. & Permanency v. A.B., 231 N.J. 354, 368

(2017) (quoting E.D.-O., 223 N.J. at 178). Among other things, Title Nine

defines an "abused or neglected child" as one under the age of eighteen 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 . . . to exercise a minimum degree of care . . .
            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. 9:6-8.21c(4)(b) (emphasis added).]

The statute only forbids "excessive" corporal punishment. Thus, the Court has

held that "occasional discipline does not fit a common sense application of the

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

N.J. 17, 35 (2011); see also N.J. Div. of Youth and Family Servs. v. H.P., 424

N.J. Super. 210, 228 (App. Div. 2011) (holding "corporal punishment" that is

not excessive "does not constitute abuse or neglect").

      Excessive    corporal    punishment     cases      are   fact-sensitive    and

"idiosyncratic." P.W.R., 205 N.J. at 33. We "ought not assume that what may

be 'excessive' corporal punishment for a . . . child must also constitute . . .


                                                                            A-0390-18T2
                                        7
excessive corporal punishment in another setting." Ibid. "[A] parent may inflict

moderate correction such as is reasonable under the circumstances of a case[,]"

but punishment is excessive when it goes "beyond what is proper or reasonable."

Dep't of Children & Families, Div. of Youth & Family Servs. v. K.A., 413 N.J.

Super. 504, 510–11 (App. Div. 2010).

      We reject defendant's claim that the physical contact between him and

Tricia was no more than reasonable discipline imposed because of her marijuana

use and talking back to her father. The judge found that defendant

             at . . . 12:30 to 1 in the morning . . . went to his
             daughter's aunt's house, no warning, no nothing and
             certainly no invitation, to intimidate his daughter to
             come to court with him the next morning to testify
             against her mother. That was the clear message she
             gave her aunt the next morning, that that was the
             purpose of his visit. And she said she did not want to
             testify on her mother.

                   ....

                   But [defendant] attempted to intimidate her . . .
             into doing that. And when she said . . . no . . .
             [defendant] resorted to physical force — physical
             violence.

Rejecting defendant's version of the physical contact between him and his

daughter, the judge found that after Tricia refused to testify, defendant "grabbed

her by the wrist, . . . slapped her in the face[,] and . . . grabbed the braids in the


                                                                              A-0390-18T2
                                          8
back of her head . . . and in some sort of fashion, she fell to the floo r . . . and

three braids were literally ripped out of her head." The judge found defendant

committed "an assault" on his daughter.

      We defer to the judge's credibility determinations and factual findings

which are amply supported by the record as a whole. The judge categorically

rejected the contention that defendant's "assault" was the result of his supposed

discipline of Tricia, or that the physical harm defendant caused Tricia was so

trivial as to fall short of the standard for abuse under Title Nine. See, e.g., N.J.

Dep't of Children & Families, Div. of Youth & Family Servs. v. C.H., 414 N.J.

Super. 472, 476 (App. Div. 2010) (affirming abuse finding where the injuries

did not require any medical attention).

      In N.J. Div. of Child Prot. & Permanency v. S.K., we held that "a Family

Part [j]udge may not draw an adverse inference of culpability against a

defendant who invokes his right against self-incrimination to refuse to testify at

a Title 9 fact-finding hearing" when related criminal charges are pending. 456

N.J. Super. 245, 251, 271–72 (App. Div. 2018). Defendant argues that the judge

here noted defendant's version of events as supplied to the Division's caseworker

was uncorroborated, implicitly drawing an adverse inference because he

exercised his Fifth Amendment rights.


                                                                            A-0390-18T2
                                          9
      However, in S.K. the trial court explicitly drew an adverse inference

against the defendant when he refused to testify. Id. at 256–61. Here, the judge

only indicated that Tricia's version of what happened was more credible because

it was corroborated by Brenda's testimony, observations made of Tricia's scalp

by Brenda and the Division's caseworker, and defendant's admission that he had,

in fact, "mushed" his daughter's face.

      We also find unpersuasive defendant's claim that the Division's

summation comments urged the judge to draw an adverse inference based on

defendant's silence at trial. A fair reading of the entire summation leads us to

conclude the Deputy Attorney General's statement that defendant failed to rebut

Tricia's version of the events was merely intended to persuade the court that the

Division had met its burden of proof.

      Affirmed.




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                                         10
