New Jersey Division of Youth & Family Services v. S.H., 439 N.J. Super. 137 (App. Div. 2015). Scott, a fifteen-year old with ADHD, was accused by his older sister, Sara, of stealing her possessions. Scott’s mother, Susan, confronted Scott about that while he was watching television. Scott responded by angrily saying “Why the fuck you always blaming me for something?” Susan’s reaction to Scott’s outburst was to throw at Scott a shoe that had a heel. Susan threw the other shoe, which Scott deflected. Scott tried to walk away, but Susan restrained him. Eventually, Susan grabbed a golf club and began hitting Scott’s legs with it. When Scott took that golf club away, Susan got another golf club. She also bit Scott multiple times. Scott then left the home after kicking several windows, breaking two of them. For two days, he “walked the streets” and did not eat or sleep.
Scott then returned home and went to school the next day. School personnel noticed that he had three bite marks, as well as contusions and swelling on his left leg and knee. The school reported that to the Division. A caseworker came to the school and called Susan, who refused to come to the school to discuss the matter. The caseworker drove Scott home, and when Susan saw them she put her hands up and said “take me to jail.”
Susan would not, however, discuss the incident, saying that she was “done with” Scott, and that if he needed medical attention, as the caseworker believed, he was old enough to take himself to the hospital. Finally, after saying “I should’ve broke his leg,” Susan told the caseworker and Scott to leave, and then told her husband, Mark, “I’ll go to court. They think they can do better, let them take him and see.” On two later occasions, the caseworker again tried to discuss Scott with Susan. Each time, Susan refused, saying she was “not doing anything” for Scott.
The Division brought abuse and neglect charges against both Susan and Mark (the Division named Mark because Scott said that Mark had bitten him too). Only the caseworker, one of the school personnel, and Scott’s two sisters testified. The Family Part found no abuse or neglect by either parent. Sara testified that Mark had not bitten Scott, and the Family Part credited that testimony. As to Susan, the Family Part found that she had been provoked by Scott’s use of profanity, that her response, though angry, was justified by the circumstances, and that Susan was “extremely remorseful.”
The Division, supported by the Law Guardian, appealed only as to Susan. Writing for the Appellate Division panel, Judge Guadagno recognized that appellate courts defer to Family Part fact-findings. But appellate 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.” And, of course, legal interpretations receive no deference on appeal.
The abuse/neglect inquiry “should focus on harm to the child, rather than on the intent of the caregiver.” In the specific context of corporal punishment, the Appellate Division stated in N.J. Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504 (App. Div. 2010), that such punishment is evaluated on a case-by-case basis. The Family Part had relied on K.A. for its ruling here, but Judge Guadagno found that opinion distinguishable. In that case, where no abuse or neglect was found, the accused parent did not lacerate the child’s skin and the parent was contrite after the incident. The situation here was very different in both those respects, since the panel here found “little if any evidence” to support the Family Part’s conclusion that Susan was remorseful. Summarizing Susan’s conduct as described above, Judge Guadagno concluded that “[t]he record shows the opposite.” In paticular, the panel was “especially doubtful” that when Susan raised her hands and said “take me to jail” she was expressing remorse.
Finally, Judge Guadagno clarified that K.A. did not establish a different standard for excessive corporal punishment when the child involved has a disability. Though such 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 protections as non-disabled children. The underlying behavior of a child, with or without a disability, can be a factor in the overall calculus of the reasonableness of a parent’s response to the child’s actions. Here, “Scott’s use of profanity did not justify Susan’s violent response.” The injuries that she inflicted on Scott sufficed for a finding of abuse or neglect.