                       RECORD IMPOUNDED

                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-0080-13T3



NEW JERSEY DIVISION OF                 APPROVED FOR PUBLICATION
YOUTH AND FAMILY SERVICES,1
                                          January 23, 2015
          Plaintiff-Appellant,
                                         APPELLATE DIVISION

v.

S.H. and M.H.,

          Defendants-Respondents.
___________________________________________

IN THE MATTER OF S.H., a minor.
___________________________________________

          Submitted December 15, 2014 – Decided January 23, 2015

          Before Judges Sabatino, Guadagno, and Leone.

          On appeal from the Superior Court of New
          Jersey, Chancery Division, Family Part,
          Union County, Docket No. FN-20-80-13.

          John J. Hoffman, Acting Attorney General,
          attorney for appellant (Andrea M. Silkowitz,
          Assistant Attorney General, of counsel; Mary
          C. Zec, Deputy Attorney General, on the
          brief).




1
  Effective June 29, 2012, the Division of Youth and Family
Services was renamed the Division of Child Protection and
Permanency. L. 2012, c. 16. (hereinafter the Division).
          Joseph E. Krakora, Public Defender, attorney
          for respondent S.H. (Deric Wu, Assistant
          Deputy Public Defender, on the brief).

          Joseph E. Krakora, Public Defender, attorney
          for respondent M.H. (Catherine Reid,
          Designated Counsel, on the brief).

          Joseph E. Krakora, Public Defender, Law
          Guardian, attorney for minor S.H. (Lisa M.
          Black, Designated Counsel, on the brief).

     The opinion of the court was delivered by

GUADAGNO, J.A.D.

     We are asked again to determine when a parent's use of

corporal punishment exceeds the boundaries of acceptable

discipline and enters the proscribed area of child abuse.     This

perplexing issue is further complicated when the parents are

confronted with a child who suffers from behavioral issues.      The

strain of dealing with an oppositional child can exact a toll on

parents and occasionally lead to a reaction where the child is

harmed.   This case presents such a scenario.

     In response to a profanity-laced outburst by her then

fifteen-year-old son, S.H. (Scott),2 defendant S.H. (Susan)

initiated a physical altercation with Scott which began with

throwing a shoe at him and progressed to hitting him with her

hands, striking him with a golf club, and biting him on his


2
  We employ pseudonyms to protect the privacy of the minors and
for ease of reference.



                                2                           A-0080-13T3
shoulder.    The Division intervened and sought a finding of child

abuse against Susan and her husband, M.H. (Mark).

     After a fact-finding hearing, the Family Part found that

the parents did not abuse or neglect Scott.   Rather, the judge

found that Scott had provoked his mother and that her actions in

striking and injuring him were therefore justified.

     The Division appeals the decision as to Susan only and

argues that the judge erred in concluding that she did not abuse

her son.    The Law Guardian agrees with the Division that Susan

abused Scott by inflicting excessive corporal punishment.       For

the reasons that follow, we reverse.

                                 I.

     Scott is the youngest of three children born to Susan and

Mark.   In 2012, Scott lived at home with his parents3 and two

older sisters, Sa.H. (Sara), then age twenty-one, and So.H.

(Sophie), then age nineteen.    On Monday, December 10, 2012,

Scott was at home sitting on a couch watching television when

Sara noticed that several personal items were missing from her

room, including a watch, sunglasses, a necklace, two gold rings,

and two gold chains.   Sara told Susan about the missing items,

and Susan confronted Scott.


3
  Mark also resides in Delaware but returns to the New Jersey
home when his work permits.



                                 3                          A-0080-13T3
     Scott got up from the couch and angrily responded to Susan,

"Why the fuck you always blaming me for something?"    Susan then

threw a shoe with a heel at Scott.     When Susan threw a second

shoe at him, Scott deflected it.     Scott tried to walk away, but

Susan grabbed him and began to hit him with her hands.     When

Scott again attempted to leave, Susan held him back.

Eventually, Susan grabbed a golf club and began hitting Scott's

legs with it.   During the confrontation, Susan yelled, "I told

you to stop disrespecting me."     Scott yelled back, "Get the fuck

off of me."   When Scott took the first golf club away from

Susan, she grabbed another, which Scott also took.    During the

struggle, Susan bit Scott at least three times on the back.4

Mark entered the room and attempted to intervene.     He later

called the police.   Before Scott left the home, he kicked

several windows, breaking two of them.

     Later that day, Susan put Scott's bed, his clothing, and

some of his possessions outside of the home.    Scott did not

return to the home for two days.     During this time he did not

4
  Scott stated to a Division caseworker that Mark bit him and
tried to hit him, and that Susan bit him while he was struggling
with Mark. Sara testified that Mark did not become involved
physically, and that Susan bit Scott. The trial court credited
Sara's version of these events, under which Mark was not
involved in the assault, and Susan was the only person biting
Scott. As the doctor found three separate bite marks on Scott,
the court's finding leads to the conclusion that Susan bit Scott
three times.



                                 4                           A-0080-13T3
eat or sleep, and, with no place to stay, he "walked the

streets."

     When Scott returned home on December 12, 2012, a police

officer was there.    After Scott spoke with the officer, she left

without taking any action.    Scott slept on the couch that night

and on Thursday, December 13, 2012, he returned to his high

school.    Before leaving the home that morning, Mark gave Scott

money to buy lunch.

     Scott had been diagnosed with attention deficit/

hyperactivity disorder (ADHD) and was enrolled as a special

education student in his high school's Behavior Disability

Program.    Scott's high school developed an individualized

education program (IEP)5 for him, and the school's behaviorist,

Alece Dickerson, was assigned as his case manager.

     On December 13, 2012, one of Scott's teachers informed

Dickerson that Scott had bruises, scratches, and bite marks.

Dickerson spoke with Scott and observed three large bite marks

on his left shoulder and contusions and swelling on his left


5
  An IEP is a comprehensive written plan developed by a team
consisting of the student's parents, teachers, and
representatives of the local educational agency. 20 U.S.C.A. §
1414(d). The IEP's ultimate purpose is to tailor the
educational services in order to meet the special needs
resulting from the student's disability and to ensure that the
student receives the benefits of free appropriate public
education. 20 U.S.C.A. §§ 1412(a)(1), (4).



                                 5                            A-0080-13T3
shin and knee.    After consulting with the school nurse,

Dickerson called the Division and reported the incident.

    Caseworker Sharece Mitchell responded to the high school

that afternoon.    She observed and photographed Scott's injuries

and conducted an extensive interview.   In addition to describing

the events of December 10, 2012, Scott informed Mitchell that he

had been disciplined "with belts and other items around the

home" since the age of eight, but the corporal punishment had

ended approximately two years before, once he was big enough to

fight back.   Scott explained that currently, he is disciplined

by his parents by being put out of the house.

    Mitchell then contacted Susan, who refused to come to the

high school to discuss the matter.   Mitchell drove Scott home

and, upon seeing the caseworker, Susan raised her hands in the

air and stated, "[T]ake me to jail."

    Mitchell attempted to discuss a family plan to address the

problems with Scott, but Susan simply stated that she "is done

with [Scott]."    Mitchell told Susan that Scott's injuries

required medical attention, but Susan replied that Scott is

grown and if he needs medical attention, he can take himself to

the hospital.    Despite Mitchell's urging, Susan refused to

engage in any discussion of the December 10, 2012 incident,




                                 6                            A-0080-13T3
Scott's injuries, appropriate Division services, or a plan

moving forward.

       When Mitchell stepped outside to consult with her

supervisor, Scott overheard a conversation between Susan and one

of his sisters.    The sister told Susan, "[H]e called DYFS on

us."    Susan replied, "I should've broke his leg."   Scott relayed

the conversation to Mitchell and said he had to get out of the

home.

       When Mitchell attempted to reengage Susan about seeking

medical attention for Scott's injuries, Susan said that both

Mitchell and Scott had to leave the home.    As the caseworker

left with Scott, Susan told Mark, "I told [Mitchell] to take

him.    I'll go to court.   They think they can do better, let them

take him and see."

       Mitchell took Scott to a hospital, where he was diagnosed

with human bites, lower leg contusions, and swelling on his

shin.    He was prescribed antibiotics for the bite wounds, and

was placed in a shelter that night.

       On December 14, 2012, Mitchell again attempted to discuss a

plan for the family with Susan to no avail.     Susan stated that

she had "slept like a baby" the night before, and was no longer

"doing anything for" or "worrying about" Scott.




                                  7                         A-0080-13T3
    On December 17, 2012, the Division filed a complaint and

was granted custody of Scott.   On December 31, 2012, Mitchell

contacted Susan to attempt to schedule a meeting to discuss

services and a reunification plan.    Susan again refused,

repeating several times that she "is not doing anything" for

Scott.   Susan did state that Scott could return home if he

wanted to, but Scott initially refused and remained in a foster

placement.    He later reconsidered and was permitted to return

home in May 2013.

    The Division sought findings of abuse or neglect against

both parents.   A fact-finding hearing was conducted over three

days in April and May 2013.   The Division called caseworker

Mitchell and Alece Dickerson.   Susan called her daughters Sara

and Sophie.

    The judge issued an oral decision concluding that neither

parent had abused or neglected Scott, and that Susan's actions

did not rise to the level of abuse.    The court found that

Scott's use of profanity "provoked" Susan's acts, which were

therefore justified:

          I think a mother being cursed at with the F
          word when she approaches [her] son who is
          lying on the couch continuing behavior that
          has been problematic to her otherwise stable
          and happy family and is confronted with the
          F word spoken to her face has a right to be
          angry, or has a — understandably can be
          angry at that.    And that just might be a



                                 8                            A-0080-13T3
           trigger that could set someone off, that
           would set her to throw something like a
           shoe.

                She — I look [at] that provocation and
           I look at what she was clearly dealing with
           with [Scott's] behavior, him not coming
           home,     with    him    being    constantly
           disrespectful to her, to him cutting school,
           to    causing   all   kinds    of  problems.
           Apparently . . . this was something she was
           unaccustomed to . . . because her daughters,
           at minimum, finished high school without
           causing any trouble.       And so she was
           provoked.

    The judge concluded that Dickerson's referral of Scott's

injuries and the subsequent response by the Division was a

"second provocation" of Susan by Scott.   The court dismissed

Susan's comment that she should have broken Scott's legs as

"someone speaking in anger and speaking in frustration . . . ."

    Although Susan did not testify, the judge appeared to

excuse her refusal to cooperate with the Division by finding

that she "was annoyed, upset, and embarrassed for a couple of

weeks" over the incident.   The judge found that at the time of

the fact-finding, Susan was "extremely remorseful" and

"desperate to engage in services now."

                               II.

    Our review of a trial court's fact-finding function is

limited.   Cesare v. Cesare, 154 N.J. 394, 411 (1998).    These

findings are binding on appeal when supported by adequate,




                                9                           A-0080-13T3
substantial, and credible evidence.    Id. at 411-12 (quoting Rova

Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484

(1974)).   That said, our review is less constricted when the

"focus is not on credibility but alleged error in the trial

judge's evaluation of the underlying facts and the implications

to be drawn therefrom."   N.J. Div. of Youth & Family Servs. v.

C.S., 367 N.J. Super. 76, 112 (App. Div.), certif. denied, 180

N.J. 456 (2004).   Likewise, the trial court's interpretation of

the law is not entitled to deference on appeal.       N.J. Div. of

Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010) (citing

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,

378 (1995)).

    A Title Nine inquiry should focus on harm to the child,

rather than on the intent of the caregiver.       G.S. v. Dep't of

Human Servs., 157 N.J. 161, 180 (1999).    Indeed, a parent is

liable for both the intended and unintended harms that result

from his or her intentional acts.     Id. at 178.    "Child abuse"

thus covers "situations ranging from slight inadvertence to

malicious purpose to inflict injury."     Ibid.

    "Excessive corporal punishment" is not defined by statute,

but is determined on a case-by-case basis.     N.J. 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




                                10                            A-0080-13T3
(2011).   As the trial court relied on K.A., we discuss that case

in detail.

      In K.A., a mother who was helping her daughter with her

homework admitted to striking the child four or five times with

a closed fist on her shoulder when the child would not obey her

instructions to complete the homework, and then refused to stay

in her room when she was sent there for a time-out.      Id. at 505-

06.   At the time of the incident, the child was eight years old

and had been diagnosed with pervasive development disorder and

attention deficient disorder.     Id. at 506.   The child suffered

four small bruises and one slightly larger bruise that caused a

mild discoloration of the skin.     Ibid.   The mother admitted to

striking the child, and explained that "she was very stressed

and overwhelmed in caring for [the child] because [her] father

worked until approximately nine o'clock in the evening and then

took work calls . . . until midnight every night."      Id. at 506-

07.

      The Division sought a finding of abuse or neglect against

the mother.   An administrative law judge found that the Division

had not met its burden of proving that the mother used excessive

corporal punishment.   Id. at 508.     The Director rejected those

findings, concluding that the act of repeatedly hitting the




                                  11                         A-0080-13T3
child with a closed fist, with sufficient force to leave

bruises, qualified as abuse.   Ibid.

    The panel reversed, noting that "the force used did not

lacerate the child's skin and did not require any type of

medical intervention."   Id. at 512-13.    Because there was no

proof of "per se excessive corporal punishment," the panel

"examine[d] the circumstances facing K.A. to determine whether

striking [the child] five times on the shoulder with a closed

fist amounted to excessive corporal punishment."    Id. at 512.

The panel found that

         K.A. was confronted with a psychologically
         disruptive child, unable or unwilling to
         follow verbal instructions or adhere to
         passive means of discipline such as a time-
         out.   K.A. 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.]

The panel also noted that the mother "accepted full

responsibility for her actions, was contrite, and complied with

Division-sponsored counseling."    Ibid.




                                  12                        A-0080-13T3
    We find that K.A. is readily distinguishable from the facts

herein, primarily due to the nature and extent of the injuries

to Scott and the instrumentalities used to inflict them.     In

N.J. Div. of Youth & Family Servs. v. P.W.R., the Court held

that a stepmother's occasional slaps to her sixteen-year-old's

face did not constitute excessive corporal punishment as a

matter of law because they did not leave any bruises or marks.

205 N.J. 17, 36 (2011).   In contrast, excessive corporal

punishment was found where a mother used a belt to hit her six-

year-old son and left visible welts.     N.J. Div. of Youth &

Family Servs. v. B.H., 391 N.J. Super. 322, 340 (App. Div.

2007).   Similarly, a mother inflicted excessive corporal

punishment by beating her daughter with a paddle in the face,

arms, and legs.   N.J. Div. of Youth & Family Servs. v. C.H., 414

N.J. Super. 472, 476 (App. Div. 2010).     In both B.H. and C.H.,

our conclusions were based on the use of an instrument to hit

the child with such force that visible marks were left, the

unreasonable and disproportionate parental response, and the

fact that the incidents were not isolated but part of a pattern

of physical punishment.   See B.H., supra, 391 N.J. Super. at

338-40; C.H., supra, 414 N.J. Super. at 481.

    Similarly, Susan's undisputed use of golf clubs and her

teeth in causing Scott's injuries, along with the resulting




                                13                          A-0080-13T3
trauma, distinguishes this case from the "occasional slap"

discipline in P.W.R.   In addition, Scott's use of profanity did

not justify Susan's unreasonable and disproportionate response.

    We also reject the judge's conclusion that Scott's injuries

did not manifest excessive corporal punishment because the

Division "did not find that the injuries required immediate

attention . . . ."   The Division did not learn of Scott's

injuries for three days.   After viewing the bite marks on

Scott's back and the bruising to his leg, caseworker Mitchell

informed Susan that Scott had "sustained injuries" and asked her

if she would be willing to take him to the hospital "to be seen

by a doctor."   When Susan refused, Mitchell took Scott to the

emergency room at Muhlenberg Hospital.   When Mitchell learned

that Muhlenberg was too crowded, she took Scott to the emergency

room at Robert Wood Johnson University Hospital.   There he was

seen by Dr. Michael Bernstein, who ordered x-rays of Scott's

left shoulder, tibia, and fibula.

    Dr. Bernstein diagnosed Scott with a contusion of the lower

extremity and human bites.   While no fractures were detected,

Dr. Bernstein prescribed Augmentin, an antibiotic, and a follow-

up visit with a primary care physician within two to three days.

The court's conclusion that the Division did not find that

Scott's injuries required immediate attention and that the trip




                                14                           A-0080-13T3
to the emergency room was part of a routine pre-placement

physical is contradicted by these facts.

    We also reject the court's conclusion that Susan's actions

were provoked by Scott.    Neither Susan nor Scott testified at

the fact-finding hearing and the Family Part judge was left to

determine the facts through statements they made to third

parties, Mitchell and Dickerson, and the observations of Sara

and Sophie.   Based on this record, several facts are undisputed:

Scott was sitting on a couch watching television when Susan

accused him of stealing items from his sister's room.    Scott

angrily denied the allegations and employed the "f-word"

expletive.    The use of this profanity apparently prompted Susan

to throw two shoes at Scott, strike him in the legs with a golf

club, and bite him several times on the shoulder.    It is also

undisputed that Scott attempted to leave the room but was

prevented from doing so by Susan, who grabbed him and attempted

to hold him back.

    While we do not condone the use of coarse or vulgar

language by a child when directed at a parent, we find no

evidence in the record that Scott's denial of his mother's

accusation, which included a passing expletive, was intended to

provoke Susan's actions.    Indeed, as the conflict escalated with

Susan throwing a shoe at Scott, he attempted to defuse it by




                                 15                         A-0080-13T3
leaving the room.    It was Susan who fueled the escalation by

grabbing Scott in an attempt to keep him in the room.    The

assault with the golf club and the biting followed.

    The court's conclusion that Scott's "bringing the Division

to [Susan's] home" constituted a "second provocation" is

unsupported by any facts in the record and inapposite to

controlling law.    First, it was not Scott who reported the

incident to the Division.    Dickerson testified that she called

the Division after one of Scott's teachers told her of his

injuries.   Moreover, Dickerson was statutorily obligated to

report the injuries to the Division, N.J.S.A. 9:6-8.10, and the

Division, in turn, was obligated to investigate the incident.

N.J.S.A. 9:6-8.18.   The court's suggestion that Scott was

responsible for the referral and did so to provoke his mother

finds no support in the record.

    We also note the incongruity in the court's conclusion that

the utterance of a single profanity by Scott justified Susan's

assault, while her own statement that she should have broken

Scott's legs was dismissed as "someone speaking in anger and

speaking in frustration . . . ."

    Nor do we find evidence to support the court's conclusion

that Susan was remorseful.    The record shows the opposite.

Susan refused to take Scott to the hospital after being told




                                  16                         A-0080-13T3
that Scott's injuries required medical attention; she initially

refused to participate in services including counseling; and

refused to even meet with the caseworker to discuss

reunification.   We are especially doubtful as to the court's

conclusion that when Susan raised her hands and told the

caseworker to "take me to jail," she was somehow expressing

remorse.

    While Susan ultimately agreed to participate in services

and permitted Scott to move back into the house, this did not

occur until almost six months after Scott's removal, during

which time he lived in a shelter over Christmas and then a

foster home.   We find little if any evidence to support the

court's conclusion that Susan ever expressed remorse or

contrition for her actions.

    Finally, given the judge's reliance on K.A., we take this

opportunity to clarify our understanding of comments made by the

K.A. panel regarding the consideration that must be extended to

a parent confronted with misbehavior by a child with behavioral

disorders.

    The panel held that "the trying circumstances which [the

mother] was undergoing due to [her child's] psychological

disorder" was a factor to be considered in determining whether




                                17                          A-0080-13T3
the defendant used excessive corporal punishment.     K.A., supra,

413 N.J. Super. at 512.

    Similarly, Scott was enrolled in special education classes

and by his own admission suffered from ADHD.     As the judge

remarked:

                 He does appear to me to be a slightly
            out-of-control   kid.      Maybe  not   even
            slightly.   He appears to me to be out of
            control and presenting challenges that the
            mother is — and father are having difficulty
            dealing with and clearly are in need of the
            services of the Division[.]

    We do not read K.A. to suggest that the test for

determining excessive corporal punishment should be any

different when the child has a disability.    While these children

may be more difficult to control, present additional challenges

to a family, and be unresponsive to traditional forms of

discipline, they are entitled to the same protection under Title

Nine as non-disabled children.   We read K.A. to hold only that

the underlying behavior of a child, with or without a

disability, can be a relevant factor among the totality of

circumstances in assessing the reasonableness of the parent's

response to the child's outburst.     The panel in K.A. found that

the child's repeated defiance despite her mother's oral

instructions created a trying situation that was relevant in

determining the reasonableness of the mother's response.    Here,




                                 18                         A-0080-13T3
Scott's use of profanity did not justify Susan's violent

response.

    As noted earlier, we defer to the trial judge's finding of

the facts, but we owe no deference to the legal conclusion drawn

by the judge from those facts.     It is here that we part company

with the trial judge's decision and conclude that the injuries

inflicted on Scott by Susan are sufficient to support a finding

of abuse or neglect.   Given this finding, we need not consider

the Division's contention that Susan abandoned Scott by refusing

to have him medically evaluated, and demanding that the Division

remove him from the family home.

    Reversed and remanded for the entry of an order finding

that Susan abused or neglected Scott.




                                 19                         A-0080-13T3
