                                      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                                 NOT FOR PUBLICATION WITHOUT THE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-2634-16T1

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

S.M., G.P., and A.G.,

          Defendants,

and

S.G.,

     Defendant-Appellant.
_____________________________

IN THE MATTER OF M.M.,

     a Minor.
_____________________________

                   Argued December 12, 2018 – Decided May 15, 2019

                   Before Judges Accurso, Vernoia and Moynihan.
            On appeal from Superior Court of New Jersey,
            Chancery Division, Family Part, Cumberland County,
            Docket No. FN-06-0088-16.

            Richard A. Foster, Assistant Deputy Public Defender,
            argued the cause for appellant (Joseph E. Krakora,
            Public Defender, attorney; Richard A. Foster, of
            counsel and on the briefs).

            Nancy R. Andre, Deputy Attorney General, argued the
            cause for respondent (Gurbir S. Grewal, Attorney
            General, attorney; Melissa Dutton Schaffer, Assistant
            Attorney General, of counsel; Nancy R. Andre, on the
            brief).

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

PER CURIAM

      Defendant S.G. appeals from a January 19, 2017 fact-finding order, now

final, that she abused her seven-year-old grandson M.M. (Mike), in violation of

N.J.S.A. 9:6-8.21(c), by inflicting excessive corporal punishment.1 Because we

conclude the court's findings are not supported by substantial credible evidence

in the record, we reverse.




1
 Mike is a fictitious name used to protect the child's privacy; the same reason
we use initials for defendant.
                                                                        A-2634-16T1
                                       2
      On the Monday after Thanksgiving in 2015, Mike's school called the

Division of Child Protection and Permanency about marks on the back of his

neck. He was driven to the Cumberland County Prosecutor's Office for a video-

recorded statement observed by the Division's intake worker. Mike told the

detective he got the marks on the day before Thanksgiving when he was trying

to go outside instead of remaining in his room as he had been told. He said his

grandmother caught him by the collar, twisting up his shirt and pinching him

with her nails, leaving several deep scratches. According to Mike, his mother

was sleeping in another room when it happened, but his grandmother later told

her about it.2

      Asked after a break whether anything else had happened, Mike reported

his grandmother threw him against a wall and picked up a stick she found inside,

hitting him with it while cursing at him. He said it happened because he was

not listening and was supposed to be standing in the corner. He also told the

detective he had been suspended from school "for saying not nice things." Mike

claimed his grandmother hit him twice with the stick on his side and once with



2
  Mike was born when his mother was fourteen years old. His grandmother has
had sole legal and physical custody of the boy since shortly after his birth.



                                                                        A-2634-16T1
                                       3
her hand. He also claimed his uncle had slammed him to the floor because he

was not standing in the corner. Mike denied having ever been hit before and

told the detective it only happened because he got in trouble. 3

      The Division did not seek to admit the video at the fact-finding hearing.

Instead, it relied on brief testimony by the intake worker, the redacted

investigation report she prepared and photographs she took of Mike showing the

scratches on his neck and two linear marks on his side and two on his back.

      The intake worker testified she interviewed Mike after he was examined

at CARES (Child Abuse Research Education and Service) Institute. Consistent

with his report to the detective, Mike told the case worker he was making noise

and trying to go outside when his grandmother grabbed him by the back of his

shirt. He told the worker his grandmother's "nails were sharp and made the 'rash'

on his neck." Mike claimed his grandmother used nail clippers to cut off her

nails after it happened, because she did not want to hurt him again. He also

claimed his grandmother cursed at him and that his mother was awake and could

see him as his grandmother grabbed him outside her room.




3
  Defendant claims the Prosecutor did not pursue the investigation or lodge any
charges against her.
                                                                         A-2634-16T1
                                        4
      The case worker had learned from the CARES doctor that Mike reported

the stick his grandmother hit him with "was from a plant that grows in the

house." Mike did not, however, repeat that to the case worker. Although the

worker testified Mike "remained consistent that he had been hit with a branch,"

that is not reflected in the investigation summary admitted into evidence.

Instead, the investigation reflects that when the worker asked Mike about the

marks the worker had seen on his back and side, Mike said he thought one of

them was old. Mike told the worker he could not remember how he got them.

Mike did not tell the case worker his grandmother hit him with a stick or

slammed him into a wall.      He told the worker that after his grandmother

scratched his neck, she later made him stand in the corner after he misbehaved

in his bath. Mike claimed he was in the corner when his uncle threw him to the

ground, and no one else was around.

      The worker learned from Mike's school that he was classified as "other

health impaired (ADHD)" and "displays a great deal of attention seeking

behavior." Mike was reported as performing below grade level with "a great

deal of trouble focusing." The worker testified defendant initially admitted she

had accidently scratched Mike when she grabbed him as he was trying to run

from her. When she later looked at Mike's neck, however, she claimed she did


                                                                        A-2634-16T1
                                       5
not cause those marks. She denied ever hitting Mike with a stick, and said she

had no knowledge of the marks on his back or side. Mike's mother claimed not

to have seen her mother grab Mike and was not aware he had any injuries.

      On cross-examination, the worker acknowledged Mike did not need

medical treatment for his injuries.     She also admitted seeing nothing in

defendant's home "that would be consistent with what [Mike] described" his

grandmother used to hit him. Asked about the timing of the two sets of injuries,

those to his neck and those caused by the stick, the worker said Mike "was very

unclear" about that, but the worker did "not believe that they occurred at the

same time."

      Defendant testified in her own behalf.      She claimed she accidently

scratched Mike when she "went to go grab him" when he ran from her after

being told to clean his room. He told her she had scratched him. She told him

she was sorry, "washed it up," clipped her nails and did not think further about

it. Defendant claimed she did not intentionally scratch Mike and had not been

trying to punish him. She denied she cursed at him. Defendant also denied

hitting Mike with a branch or causing the marks on his back or side. She claimed

she typically disciplined Mike by giving him a time out or making him stand in

the corner.


                                                                        A-2634-16T1
                                       6
      After hearing the testimony, the judge put his decision on the record. The

judge found that on the Wednesday before Thanksgiving, Mike "after having

been suspended from school . . . , was apparently misbehaving and not cleaning

up his room and he was running around the house, as young children who may

have the conditions that the child has will do, and that at some point his

grandmother grabbed him by the shirt," and in an instance of "arguably

excessive corporal punishment," caused the marks depicted in the photograph

P-1 in the record. The judge stated he found "[p]erhaps more disturbing" P-3,

the picture of the marks on Mike's side, "and the one that really bother[ed]

[him]" was P-4 the picture of the marks on Mike's back.

      The judge continued:

                   I'll note for the record that the child said that a
            stick injured him. And perhaps that is what happened.
            But me, having the honor of having sat here as a judge
            for fifteen years, . . . that injury on P-4 doesn't look like
            a stick, it looks like a wire. It looks like some kind of
            a cord.

                  And one of the reasons why I ask the question is
            — and the sad thing is I can't find this by a
            preponderance of the evidence, so what I am saying at
            this point is pure speculation on my part based on my
            years of experience as a judge, sadly I can't find that by
            a preponderance of the evidence. I'll bet when this
            child got suspended from school . . . that he got hit with
            a cord of some type as punishment for that.


                                                                            A-2634-16T1
                                         7
                    I am pretty sure that's what happened in my mind,
            but I can't find it. I absolutely can't find that that
            happened. All I can find is that the child said that he
            was hit by a stick. The injury in P-4, I'm pretty sure, is
            a cord, and I'll bet he got suspended from school and
            I'll bet he got hit with a cord.

                   But he doesn't say that, and nobody says that
            happened, so I have absolutely no proof other than a
            picture which, to me, based on my years of experience
            in all the time, sadly, I've seen children that have been
            hit by cords from irons most of the time, that's what it
            is most of the time, a cord from an iron, but that's what
            I see in P-4, but I can't find it because the child doesn't
            say that happened, the parent — the grandmother
            doesn't say anything like that happened, and the mom
            doesn't say anything like that happened. So I can't find
            that. All I can find is that the child said he was hit by a
            stick and that the injuries that are shown on P-3 and P-4
            don't, under the circumstances, do not, as [defense
            counsel] argues, evidence injuries that I would expect
            to have occurred by a stick. But the child says he was
            hit by a stick.

      The judge found the intake worker's testimony credible and did not believe

defendant's testimony.    He found Mike's account of how he received the

scratches to his neck "corroborated by the injuries" depicted in P-1. As for

corroboration of Mike's account of his grandmother hitting him with a stick, the

judge stated he was

            a little concerned about the child being said that he was
            hit by a stick because I am not sure that the injuries that
            are shown are evidenced by that. I think the injuries
            that are shown, I've already made some speculation as

                                                                          A-2634-16T1
                                        8
            to the same, which sadly I can't find by a clear
            preponderance of the evidence.

                   I'm not sure that in regard to that particular
            situation that he's truly explaining what happened. And
            there was some testimony about the child perhaps being
            intimidated in some way and being told that if he was
            totally honest with the Division that bad things would
            happen to him. Maybe that caused him to not say what
            really happened as to that. Obvious to me, wire mark
            across his back. But he said it was just a stick and I'll
            note that for the record. And the fact that no stick was
            found doesn't impress me in any way whatsoever.

      The judge found that even assuming Mike's mother "was there when her

mom scratched her son's neck and . . . was there when whatever else happened

to her son happened," he could not find her failure to intervene or report these

events rose to the level of willful and wanton misconduct. As to defendant, the

judge stated:

            I am pretty sure that I don't know what really happened
            here and I am pretty sure that the injuries that occurred
            to the child's neck were in — were, as I have already
            labeled, bordering on inappropriate corporal
            punishment. And I do, in fact, find that something
            happened to the child that he says was with a stick and
            I've already made my speculation that I am deeply
            concerned that in all probability, the child received
            some pretty serious corporal punishment when he got
            suspended from school, when he wouldn't clean his
            room.

                  I'm pretty sure, [defendant], that you have been
            rendering inappropriate corporal punishment to your

                                                                        A-2634-16T1
                                       9
            grandson and that you did it at least a couple of times
            on — in and around this time that week, and without
            any question in my mind, I can find that you are
            negligent as to that, having found that you did, in all
            probability, yank the child around by his shirt in a far
            more serious way than you have admitted that you did.
            It was probably a really ugly scene for him to get these
            scratches on his neck that bad, assuming that it was an
            accident, and that you pulled and yanked him around
            because he wouldn't clean his room after being
            suspended from school to the point where he scratched
            his neck the way that he scratched his neck and it
            looked like it does five days later.

                  And I can find that you were clearly negligent —
            he says you hit him with a stick. Whatever you hit him
            with, it left marks and that means it was, in my mind,
            excessive in this case.

                  And so it gets to the point where I have found that
            you did place the child's mental, physical or emotional
            condition in imminent danger of being impaired by
            your rendering of corporal punishment that I am finding
            that you have done.

                   I do, in fact, find also that you did not properly
            supervise the child and did unreasonably inflict and
            allow to be inflicted harm on the child — actual harm,
            not just substantial risk thereof, and I do, in fact, find
            that in this case there was corporal punishment that I
            have said bordered on excessive and I believe in sense
            (sic) and all probability was excessive in regard to the
            situation.

      Acknowledging the line between mere negligence and willful and wanton

misconduct can be difficult to discern, the judge found


                                                                         A-2634-16T1
                                       10
           in this case we're in that gray area because it's far more
           than a slight inadvertence, but I don't find that mom —
           that the grandmother, the primary residential parent of
           this child, [defendant], had a malicious purpose to
           intent — to inflict injury.

                  Clearly she was angry at the child when the neck
           was scratched and I feel that she was angry at the child.
           And although she denies it ever occurred and mom in
           her interview says that she never saw any such thing
           occur and the child says he was hit by a stick and the
           injuries don't really evidence that, but we are
           somewhere between slight inadvertence and malicious
           purpose to intend injury.

     Concluding defendant did not intend to injure her grandson, the judge

nevertheless found

           on at least a couple of occasions, because I find she did
           scratch the neck of the child and acted in a way
           probably out of anger towards the child based on the
           totality of circumstances, she scratched his neck, and
           according to the child, and I find his testimony to be
           truthful — or not testimony, but I find his statements to
           [the intake worker] to be truthful and able to be
           considered by me under [N.J.S.A. 9:6-8.46(a)(4)], he
           received additional corporal punishment, which he says
           was by a stick, and there are marks left on his body that
           may not be injuries that you would see from a stick, but
           clearly something caused marks to be entered on his
           body and he said he was corporally punished.

                 And when I combine both of the events together,
           happening in a very near proximity to each other and
           not believing [defendant] and believing what the child
           says, finding [the intake worker's] testimony to be
           truthful and credible, and finding the totality of the

                                                                        A-2634-16T1
                                      11
            circumstances that this child, over a couple of days, had
            a couple of incidents when he was strongly disciplined,
            I do, in fact, find that although close, it goes over the
            line and is reckless and is, in fact, in violation of
            [N.J.S.A.] 9:6-8.21 and that grandmother did
            unreasonably inflict harm on this child by engaging in
            excessive corporal punishment on at least one occasion
            that had — was subsequent to inappropriate corporal
            punishment by grabbing the child's neck and causing
            these scratches. And the totality of the circumstances,
            everything that I see, I find amounts to a preponderance
            and I enter a finding of abuse or neglect against
            [defendant] for the reasons stated on the record at this
            time.

      On appeal, defendant argues the Division's failure to corroborate Mike's

statement that defendant hit him with a stick leaves the trial court's finding of

abuse and neglect without adequate support in the record. Based on the trial

court's other findings, we agree.

      As has long been recognized, an abuse or neglect proceeding implicates a

parent's substantial rights. See In Re Guardianship of Cope, 106 N.J. Super.

336, 343 (App. Div. 1969). Thus "it is of great importance that the evidence

upon which judgment is based be as reliable as the circumstances permit and

that the answering parent be given the fullest possible opportunity to test the

reliability of the [Division's] essential evidence by cross-examination." Ibid.

Pursuant to N.J.S.A. 9:6-8.46(a)(4), "previous statements made by the child

relating to any allegations of abuse or neglect shall be admissible in evidence;

                                                                         A-2634-16T1
                                      12
provided, however, that no such statement, if uncorroborated, shall be sufficient

to make a fact finding of abuse or neglect." N.J. Div. of Youth & Family Servs.

v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003).

      The only corroboration the Division offered of Mike's allegations against

his grandmother were the photographs in evidence and defendant's statements

to the intake worker. Leaving aside defendant's own testimony at the fact-

finding hearing, Mike's allegations as to the injuries to his neck were readily

corroborated by defendant's statements to the intake worker, admissible against

her as a party in the abuse or neglect action, N.J.R.E. 803(b)(1), and the

photographs, which the judge found depicted "fairly obvious scratch marks on

the neck."

      Defendant, however, consistently denied ever hitting Mike with a stick.

The only corroboration the Division offered as to that allegation were the two

photographs of Mike's back and side. 4      The Division did not rely on that


4
  The Division asserts Mike's statements were also corroborated by the intake
worker's testimony that Mike "provided consistent and credible statements
regarding what occurred." Mike did not testify. The court was thus precluded
from any finding as to his credibility based on the worker's assessment. See
L.A., 357 N.J. Super. at 168-69. Further, the consistent repetition of a perceived
credible statement does not, on its own, constitute corroboration. See N.J. Div.
of Child Prot. & Permanency v. N.B., 452 N.J. Super. 513, 523 (App. Div. 2017).
Finally, as noted, Mike never repeated the allegation of being hit with a stick to
the worker.
                                                                          A-2634-16T1
                                       13
allegation in substantiating the abuse and neglect allegations against defendant.

It based its substantiated finding only on the injuries to Mike's neck, not on the

claim he was hit with a stick. And although the Division had Mike examined at

CARES Institute and received a report from the examining physician, it did not

call the doctor to testify or offer the report in evidence. Thus the Division

proffered no expert testimony that the marks on Mike's back and side depicted

in the two photos in evidence were as a result of him being struck with a stick,

or, indeed, struck at all.

      More important, the judge did not find the photographs corroborated

Mike's account of being hit with a stick. Instead, he found "the injuries that are

shown on P-3 and P-4 don't, under the circumstances, . . . evidence injuries that

I would expect to have occurred by a stick." Although it is well established that

corroboration "need not relate directly to the alleged abuser," it must "provide

support for the out-of-court statements." N.J. Div. of Youth & Family Servs. v.

Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002). Because the judge expressly

found the photographs did not provide that support here, it was error to base an

abuse or neglect finding on Mike's uncorroborated allegation of being struck

with a stick. See N.J.S.A. 9:6-8.46(a)(4); L.A., 357 N.J. Super. at 166-67

(holding a witness's acknowledgment of a debt too indirect to provide


                                                                          A-2634-16T1
                                       14
corroboration of minor's out-of-court statement). That the judge was willing to

"bet" based on the photographs and his fifteen years on the bench that Mike "got

hit with a cord of some type," is obviously not support for the child's statement

that he was hit twice with a stick. 5

      Although "a single incident of violence against a child may be sufficient

to constitute excessive corporal punishment," Dep't of Children & Families, Div.

of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 511 (App. Div. 2010),

the trial court judge did not find the injuries inflicted by defendant on Mike's

neck constituted excessive corporal punishment.        Instead, he termed that

incident as one "bordering on inappropriate corporal punishment." The judge

further did not find defendant acted with "a malicious purpose" or intended to

injure her grandchild. Instead, the judge based his finding of abuse or neglect

on "the totality of the circumstances," namely, that defendant "did unreasonably



5
  Although we acknowledge the judge's repeated statements that his comments
were "pure speculation," they were nevertheless inappropriate. Even if not the
"gap-filling" defendant contends, and our Supreme Court prohibits, see N.J.
Dep't of Children & Families, Div. of Youth & Family Servs. v. A.L., 213 N.J.
1, 28 (2013), a judge "speculat[ing]" about what he would "bet" happened in an
abuse and neglect matter and commenting that he "sadly" could not make a
finding based on his speculations could readily convince a litigant she was not
receiving a fair hearing, see State v. McCabe, 201 N.J. 34, 43 (2010) (noting the
Supreme "Court recognized nearly a half century ago, justice must satisfy the
appearance of justice" (quoting DeNike v. Cupo, 196 N.J. 502, 514 (2008))).
                                                                         A-2634-16T1
                                        15
inflict harm on this child by engaging in excessive corporal punishment on at

least one occasion that . . . was subsequent to inappropriate corporal punishment

by grabbing the child's neck and causing these scratches." Because the court's

abuse and neglect finding, which the judge termed "close," was based on

"combin[ing] both of the events together," it cannot be supported based on the

injuries to Mike's neck, standing alone.

      In sum, we find Mike's statement that his grandmother hit him with a stick

was not corroborated and thus was improperly admitted to support an abuse or

neglect finding against defendant. Further, without a finding that defendant

engaged in excessive corporal punishment by hitting Mike with a stick, the

court's abuse and neglect finding, which was based expressly on the totality of

the circumstances and by combining that event with the prior injuries to Mike's

neck, lacks support in the evidence.

      Reversed.




                                                                         A-2634-16T1
                                       16
