                             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                        NOT FOR PUBLICATION WITHOUT THE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-3721-15T2

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,
v.

N.H., SR.,

     Defendant-Appellant.
_________________________________

IN THE MATTER OF N.H., JR.,

     Minor.
_________________________________

              Submitted May 24, 2017 – Decided July 17, 2017

              Before Judges Fuentes and Farrington.

              On appeal from the Superior Court of New
              Jersey, Chancery Division, Family Part, Hudson
              County, Docket No. FN-09-0368-14.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Kimmo Z.H. Abbasi, Designated
              Counsel, on the brief).

              Christopher S. Porrino, Attorney General,
              attorney for respondent (Andrea M. Silkowitz,
              Assistant Attorney General, of counsel; Alaina
              M. Antonucci, Deputy Attorney General, on the
              brief).
            Joseph E. Krakora, Public Defender, Law
            Guardian, attorney for minor (Todd S. Wilson,
            Designated Counsel, on the brief).

PER CURIAM

     Defendant N.H., Sr. is the biological father of N.H., Jr.,

(Neil),1 a child under the age of eighteen.              He appeals from the

order of the Family Part finding he abused and neglected Neil

within the meaning of N.J.S.A. 9:6-8.21c(4)(b).              After conducting

a fact-finding hearing, the court concluded defendant "created or

allowed to be created a substantial physical injury to [Neil] by

other    than   accidental    means    and    caused     protracted      loss    or

disfigurement[.]"         Defendant argues the Family Part's findings

were not supported by sufficient competent evidence in the record.

We disagree and affirm.

     On November 21, 2013, the Division of Child Protection and

Permanency (Division) received a referral from a staff member at

Neil's    after-school      program    that    defendant        had   physically

assaulted his son three days earlier because the boy was wearing

makeup.      Neil   was    fifteen    years   old   at    the    time.      After

investigating the matter, the Division filed a verified complaint

and order to show cause (OTSC) on November 25, 2013, alleging that



1
  Pursuant to Rule 1:38-3(d)(12), we use the pseudonym "Neil" to
protect the child's privacy.


                                       2                                  A-3721-15T2
on November 18, 2013, defendant had assaulted Neil by "punching

him hard in his mouth with a closed fist."        The force of the blow

was so severe that it left the child momentarily unconscious and

knocked loose one of his front teeth.           Neil told the Division

investigator2 that his father attacked him because he was wearing

makeup as an expression of his sexual orientation.        Neil also told

the investigator that his father called him homophobic slurs and

"use[d] to beat me a lot."

     The Family Part conducted an initial evidentiary hearing

during which principal investigator Roger Broyles and Division

Special   Response   Unit   (SPRU)   Worker   Mauricio   Diaz   testified.

Defendant was present and represented by counsel.          After hearing

from these two witnesses and considering the arguments of counsel,

the judge found the Division had presented sufficient evidence to

warrant the emergent removal of the child.        The judge placed Neil

in the custody of the Division.

     After several status conferences, the court conducted a fact-

finding hearing on March 13, 2014.            Investigator Broyles and

Division SPRU Worker Diaz testified for the Division.            Defendant

testified in his own defense.        Broyles testified that Neil told


2
  The investigator was employed by the Public Defender's Office.
The Conflict of Interest Unit assigned him to serve as the
Principal Investigator in this case because Neil's stepmother is
employed by the Division.

                                     3                             A-3721-15T2
him that at approximately 8:45 p.m. on November 18, 2013, his

father was upset with him because he forgot to take out the trash.

When defendant came into the boy's bedroom to chastise him for not

doing the chore, defendant noticed that Neil had mascara and makeup

on.   Defendant became irate and started yelling.       When Neil "made

a smart remark," defendant "punched him in the face, . . . knocking

[Neil] to the floor."      Neil briefly lost consciousness, started

"coughing up blood" and noticed one of his front teeth was loose.

Neil told Broyles that his father apologized and attempted to calm

him down.   Based on his own observations, Broyles testified that

Neil had a missing front tooth and the inside and outside of his

lower lip was injured.     Although his stepmother was present at the

time of this incident, no one called the police.

      Neil also alleged that he had suffered physical abuse at his

father's hands for approximately a year and a half.           He alleged

defendant   called   him   homophobic   slurs,   such   as   "fairy"   and

"faggot."   He also alleged that defendant punched him and left

bruises on several other occasions.      Broyles's report states that

Neil praised his stepmother for regularly standing up for him; she




                                   4                              A-3721-15T2
attempted to stop the abuse, but was afraid to report defendant's

violent acts to the Division.3

     Broyles spoke with defendant twice that same day.   According

to Broyles, defendant stated that he received a call from Neil's

school about his son's use of makeup.   When he confronted Neil in

his bedroom to chastise him, he "observed a black handle in his

[son's] pocket[.]"   This turned out to be the handle of a knife.

Defendant told Broyles he believed his son's tooth fell out when

he grabbed his son to prevent him from doing anything drastic.

They then struggled and fell to the floor. When Broyles questioned

Neil about the knife, he denied threatening his father with it.

     Broyles testified defendant took Neil to the dentist on

November 20, 2013, which coincided with a prescheduled appointment

for a filling.   The dentist postponed the filling and checked

Neil's mouth to make sure it was not infected.       According to

Broyles, the dentist told Neil that the original tooth could not

be reinserted and he would need an implant.     Defendant did not

take Neil to any other medical professional to determine if the

child had sustained any neurological injuries arising from his


3
  Neil told Broyles that the Division's response unit came to his
home in 2012. The investigator did not take any action because
the "bruises" were "not that bad." Neil also told Broyles he was
afraid because his stepmother works for the Division. The record
shows the case under review here is the only incident of abuse and
neglect that the Division has substantiated against defendant.

                                 5                         A-3721-15T2
momentary loss of consciousness.    Broyles arrived at defendant's

residence during the early morning of November 22, 2013.              He

observed an oval-shaped abrasion on the knuckles of defendant's

left hand.   Defendant told Broyles he received this injury when

Neil cut him with a knife during their altercation.          Defendant

again denied striking Neil and continued to claim the tooth became

loose when Neil fell to the floor during their tussle.

     Defendant gave the following testimony with respect to his

son's sexual orientation.

          Q. How long have you known [Neil's] sexuality?

          A. Since he was in grammar school.     He was in
          the seventh grade. I knew then.

          Q. Has that been a problem for you?

          A. No.   I still loved him the same.

               . . . .

          Q. Have you ever been concerned about [Neil]
          wearing make-up?

          A. Just through his history with the assault,
          and I was afraid that another assault would
          have took [sic] place. Like, he was raped and
          he was very outgoing. He wanted to . . . be,
          like, transsexual and I was afraid that he was
          already . . . hurt three times to [sic] this
          incident, so, of course, as a dad, I'd tell
          him, hey, don't go out there wearing that.
          [Neil] did never [sic] want to listen.

          Q. So your concern was mainly . . . for his
          protection?


                                6                              A-3721-15T2
              A. Yes.    Yes, sir.   Definitely.

              Q. On November 18th, [2013], . . . you . . .
              got into a fight because of his sexuality?

              A. No.    That had nothing to do with it.

     On cross-examination, defendant denied admitting to Broyles

that he struck his son on November 18, 2013.                 Defendant denied

that a staff member from his son's school had called about his son

wearing make-up.        He denied calling the school to report that Neil

would not attend on November 19 and 20, 2013.                    Defendant also

denied that the injury to his left hand had anything to do with

striking his son in the face.         Defendant is left-hand dominant.

     The Family Part Judge who presided over the fact-finding

hearing did not find defendant's testimony credible.                  The judge

expressly     rejected     defendant's       characterization    of   his     son's

demeanor as violent and aggressive. Conversely, the judge accepted

the testimony of the Division's witnesses who described the child

as looking "like a beaten puppy, upset, afraid to go home, meek[,]"

and as if he was in fear.        The judge found the Division had proven

by a preponderance of the evidence that defendant physically abused

his fifteen-year-old son on November 18, 2013.

     As   a    condition    of   regaining      custody,   the   court   ordered

defendant to complete anger management counseling and submit to a

psychological evaluation.         Defendant did not comply.           On June 1,


                                         7                                  A-3721-15T2
2014, defendant requested the Family Part terminate his parental

rights to Neil.    The court denied defendant's request.        The

question is now moot because Neil has reached the age of majority.

     We are bound to uphold the factual findings of the Family

Part if they are "supported by 'adequate substantial and credible

evidence' [i]n the record."   N.J. Div. of Youth & Family Servs.

v. M.M., 189 N.J. 261, 279 (2007) (quoting In re Guardianship of

J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).     The Supreme

Court has also recognized that we owe an enhanced deference to the

Family Part when the factual findings are "largely testimonial"

and involve "questions of credibility."    Cesare v. Cesare, 154

N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D.,

149 N.J. 108, 117 (1997)).

     New Jersey law defines an "[a]bused or neglected child" as:

          a child less than [eighteen] years of age
          . . . 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 . . . 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. 9:6-8.21c(4) (emphasis added).]



                                8                          A-3721-15T2
       The Family Part found defendant struck his fifteen-year-old

son in the face with a closed fist with such force that it caused

the child to lose consciousness temporarily. When the child awoke,

his lower lip bled and one of his front teeth had come loose.

This   is   precisely   the   type   of   violence   that    this   court   has

identified as "excessive corporal punishment" under N.J.S.A. 9:6-

8.21c(4).    N.J. Div. of Youth & Family Servs. v. K.A., 413 N.J.

Super. 504, 512 (App. Div.), certif. granted, 204 N.J. 40 (2010),

certif. dismissed, 208 N.J. 355 (2011).

       As we explained in K.A.:

            [A] single incident of violence against a
            child   may  be   sufficient   to  constitute
            excessive corporal punishment.    A situation
            where the child suffers a fracture of a limb,
            or a serious laceration, or any other event
            where medical intervention proves to be
            necessary, may be sufficient to sustain a
            finding of excessive corporal punishment,
            provided that the parent or caregiver could
            have foreseen, under all of the attendant
            circumstances, that such harm could result
            from the punishment inflicted.

            [Id. at 511.]

       Here, the Family Part found that when Neil returned home,

defendant confronted him about wearing makeup.              The confrontation

quickly escalated into a physical assault when defendant punched

Neil in the mouth.        The record includes photographs depicting

Neil's missing tooth and his lacerated lower lip.             The photographs


                                      9                               A-3721-15T2
also depict defendant's left hand with an oval-shaped abrasion on

the knuckles.    Finally, because the Family Part Judge rejected

defendant's testimony as not credible, we conclude the violence

defendant inflicted on his son was motivated, in large part, by

defendant's odious homophobic repudiation of his son's sexual

orientation.     This   makes   defendant's   actions   particularly

reprehensible.

    Affirmed.




                                10                           A-3721-15T2
