RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5598-18

NEW JERSEY DIVISION 

OF CHILD PROTECTION 

AND PERMANENCY,

Plaintiff-Respondent,

v.

R.O.1and A.O., 

Defendants,

and 

T.A.,

Defendant-Appellant/

Cross-Respondent.

_________________________

IN THE MATTER OF 

L.A.O., J.O., D.O., and O.O.,

Minors/Cross-Appellants. 

__________________________

Submitted February 9, 2021 – Decided March 3, 2021

1 We use initials pursuant to Rule 1:38-3(d)(12).

NOT FOR PUBLICATION WITHOUT THE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.
2

A-5598-18

Before Judges Haas, Mawla, and Natali.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Essex County, Docket 

No. FN-07-0141-19.

Joseph E. Krakora, Public Defender, attorney for 

appellant/cross-respondent (Robyn A. Veasey, Deputy 

Public Defender, of counsel; Victor E. Ramos, 

Assistant Deputy Public Defender, on the briefs). 

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Jane C. Schuster, Assistant Attorney 

General, of counsel; Sara K. Bennett, Deputy Attorney 

General, on the brief). 

Joseph E. Krakora, Public Defender, Law Guardian, 

attorney for minors/cross-appellants (Meredith Alexis 

Pollock, Deputy Public Defender, of counsel; Cory H. 

Cassar, on the brief). 

PER CURIAM

T.A. appeals from an April 10, 2019 order entered following a factfinding 

hearing which found he abused his niece L.A.O., pursuant to N.J.S.A. 9:6-

8.21(c). The Law Guardian, on behalf of L.A.O. and her siblings, T.O., J.O., 

and O.O., cross-appeal also challenging the trial judge's findings. We affirm. 

We take the facts from the record of the factfinding hearing. R.O. and 

A.O. are the biological parents of the children. A.O. resides abroad and his 

brother T.A. resides with R.O. and serves as a father figure to the children. 
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A-5598-18

The underlying incident occurred on October 16, 2018. L.A.O. was 

seventeen at the time and a high school senior. She had good grades, but R.O. 

was concerned about her socializing habits, which R.O. believed were contrary 

to the family's custom and cultural values. 

On October 17, 2018, the Division of Child Protection and Permanency 

(Division) received a referral from L.A.O.'s school stating the child appeared in 

school wearing sunglasses and when she removed them, it revealed her right eye 

was swollen shut. The reporter relayed the child said she arrived home at 8:00 

p.m. the previous night and informed R.O. she was at a game. She was told to 

wash the dishes and T.A. told her to write down what she did that day. R.O. 

asked her for her cell phone as well. When L.A.O. refused to hand over the 

phone, T.A. slapped and punched her several times in the head while R.O. took 

the phone. L.A.O. also stated her siblings witnessed the incident and begged 

T.A. to stop hitting their sister. The child relayed this story to her teacher, school 

nurse, and school social worker. 

L.A.O. stated she did not want to return home and R.O. wanted her to 

leave, but she was sleeping on the couch. The school nurse recommended 

L.A.O. go to the hospital.
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The Division investigator traveled to the hospital and interviewed the

physician who assessed L.A.O., and learned she was in the hospital eye clinic. 

There, the investigator interviewed L.A.O. and R.O., and photographed L.A.O.'s 

injury. L.A.O. informed the investigator she stayed after school to watch a game 

with friends and arrived home late in the evening. When she entered the home,

R.O. and T.A. asked her where she had been and why she had not responded to 

their calls, but L.A.O. refused to answer them. L.A.O. repeated what she 

previously said to school staff regarding having to wash the dishes and write 

down her activities for the day. She was told to put her phone on the couch. 

She stated she finished writing and went to the kitchen. R.O. then asked L.A.O.

for her phone, which L.A.O. had put in her pocket. R.O. then began to hit L.A.O.

on her legs and backside with a belt. When L.A.O. refused to give the phone to 

her mother, T.A. became involved and slapped L.A.O. with an open hand across 

the right side of her face. As L.A.O. attempted to flee to her room, T.A. grabbed 

her around the waist and attempted to hold her arms so her mother could take 

the phone. L.A.O. responded by hitting and kicking R.O. and throwing a chair 

at T.A. L.A.O. told the investigator the last time she was physically disciplined 

was by her mother when she was twelve and the punishment was not as severe 

as she experienced with T.A.
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When the investigator spoke with R.O. about the incident she explained 

she was upset because L.A.O. did not ask for permission to go to the game and 

came home late without explanation, which was a common occurrence. She 

stated L.A.O. was sending and receiving nude photos with men on social media. 

She repeated the essential facts of the underlying incident and stated she asked 

L.A.O. four or five times for her phone, but she refused to give it to her and 

admitted to striking L.A.O. multiple times with a belt. As the scuffle ensued, 

she stated T.A. held the child by the waist to enable R.O. to take the phone. She 

stated the phone fell on the floor and L.A.O. must have injured her eye as she, 

R.O. and T.A. attempted to retrieve it; she denied that T.A. beat L.A.O. 

L.A.O. was discharged from the hospital the same day. The hospital 

records described the injury as having been caused by a blunt or sharp blow to 

the eye or surrounding structures, which would heal in approximately two 

weeks. The prognoses indicated potential complications, including vision loss, 

infection, and cataracts. L.A.O. was prescribed antibiotic eye drops to prevent 

infection and referred to an eye specialist. The Division also referred L.A.O. to

the Regional Diagnostic Treatment Center (RDTC), for a follow-up medical 

appointment, and a psychosocial assessment.
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The investigator interviewed fifteen-year-old J.O. who recounted the 

incident the prior evening. He reported he heard R.O. ask L.A.O. for the cell 

phone multiple times and heard her hitting L.A.O. with a belt. He went 

downstairs to intervene and saw L.A.O. fighting with R.O. and T.A. and saw 

T.A. hit L.A.O. repeatedly in the face. Then he saw R.O. retrieve the phone and 

L.A.O. went to her room. When the investigator asked J.O. when he or his 

siblings were last physically disciplined, he could not recall. 

During her interview with the investigator, R.O. agreed to contact the 

Division to take L.A.O. to the police station the next day to file a report. The 

Division followed up with R.O. regarding the trip to the police station and 

learned R.O. had already taken L.A.O., and that L.A.O. told the police she had 

fallen and hurt herself. 

In November 2018, the RDTC completed a psychosocial evaluation of 

L.A.O. The evaluator noted she described the incident in a similar fashion as 

she reported to school and hospital staff and the investigator, but stated the 

phone was in her hand when it hit her face. She told the RDTC evaluator she 

lied about T.A. hitting her because she was upset and was unaware of the 

consequences. 
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T.A. refused to be interviewed by the Division and denied hitting L.A.O. 

R.O. refused to make D.O. and O.O. available for an interview. 

The Division's summary noted it established R.O. for "[p]hysical [a]buse-

[p]hysical [i]mpairment [i]ncident [of L.A.O.] without [i]njury" and 

substantiated T.A. for "[p]hysical [a]buse- [c]uts, [b]ruises, [w]elt, [a]brasion, 

[o]ral [i]njury" of L.A.O. The Division filed a complaint seeking care and 

supervision of the children pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C12.

At the factfinding hearing, the Division presented the testimony of its 

investigator, and T.A. called L.A.O. and J.O. as his witnesses. The trial judge

rendered comprehensive oral and written determinations, including credibility 

findings. 

The judge found the investigator's testimony was "highly credible[,] 

authentic[,] clear[, and] professional . . . ," noting she answered questions 

"directly[,] concisely[, and] candidly articulated her" experience with the 

family. The judge found the investigator testified consistently with her report. 

Noting the investigator had worked for the Division for fifteen years, the judge 

credited the investigator's explanation for the discrepancy in L.A.O.'s versions 
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of the events, that "in her experience, the first report of a child is often the most 

honest version of events." 

Conversely, the judge found L.A.O.'s testimony "fraught with 

discrepancies" and was "inauthentic [and] not credible." She noted she "often 

contradict[ed] herself and was unable to clarify several of her responses." The 

judge found L.A.O. "lack[ed] confidence in her own responses" and found her 

testimony "unclear" and at times, she was "unable to respond to the question 

asked because she could not recall the answer." The judge concluded L.A.O.'s 

initial disclosure was the "most credible . . . due to its repetition, the time in 

which she made the disclosure, the consistency with her injury and the 

corroboration of her brother J[.O.]." The judge further stated:

At no time during [L.A.O.'s] testimony did she state 

that she was angry the next morning at [T.A.] or her 

mother, only that she was upset that she had the injured 

eye. It is highly understandable if she were upset by 

the altercation or upset at how she received the eye 

injury, but she never admitted to this, although asked 

repeatedly. It is clear to the court that she did not testify 

honestly about what occurred on the night of the 

incident. Nor did she ever offer a clear explanation for 

her actions. Throughout her testimony she did not 

describe or evidence any emotions that would logically 

follow an altercation that led to the injury she sustained. 

She instead testified that she was upset only that the 

Division was involved with her family.
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[L.A.O.]'s version of the events in her testimony 

differed from her initial disclosure in that she stated that 

she went downstairs to do the dishes, her mother hit her 

with a belt and then there was a struggle for the phone. 

She testified that she went to go upstairs and that [T.A.] 

was trying to get her off the stairs "for [her] safety." 

She also testified that her mother asked [T.A.] to help 

take possession of the phone. [L.A.O.] testified that 

this is when she hit herself in the eye with the phone, 

when she was twisting and turning to get away from 

[T.A.]. When describing how the phone hit her, she did 

not clarify how a force was applied to the phone that 

would result in the serious injury to her eye.

In addition, this court does not find her testimony 

credible regarding [T.A.] trying to get her off the stairs 

"for [her] safety". She testified that there are many 

boxes near the stairs that could have fallen and possibly 

injured her. Though this may be true, the court does 

not find it likely that this is why [T.A.] had to stop her 

from going up the stairs. In fact, if this were true, logic 

would dictate that it would have been safer for [T.A.] 

and [R.O.] to wait until [L.A.O.] had gone up the stairs 

to try [to] retrieve the phone from her. [L.A.O.] further 

testified that she told the school staff, who first 

approached her about her eye injury, the version of 

events that she testified to in court (that [T.A.] didn't 

hit her). She then testified that after this disclosure she 

changed her story and began telling the version of 

events initially reported to the Division (that [T.A.] did 

hit her). 

During cross examination by the [Deputy

Attorney General (DAG)], [L.A.O.] was asked why she 

chose to change her story and why she did so in such a 

short period of time. [She] could not provide an answer 

for her actions. The DAG then asked [L.A.O.], if the 

punch or slap occurred before or after her mother hit 
10 A-5598-18

her with a belt. [L.A.O.] replied, "Before." This 

answer was in direct contrast with her prior testimony, 

and in fact aligns with her original disclosure to the 

Division.

The judge concluded L.A.O.'s testimony was "inauthentic, untruthful, and 

directly evasive of the actual nature and degree of the altercation that occurred 

on that night."

The judge also found J.O.'s testimony "very evasive" and his "reserved"

demeanor and "very short nondescript responses" indicative his testimony was 

"highly insincere and contradictory." She stated:

[J.O.'s] testimony is in direct conflict with his 

earlier statements made to the Division. The court finds 

his testimony to be very selective with what he did and 

did not remember. During [J.O.'s] testimony, he stated 

five separate times that he "could not recall" the events 

of the night of the incident. The details that he could 

not remember were those that directly relate to how 

[L.A.O.] was disciplined and the scuffle that occurred 

between [L.A.O.], [T.A.], and [R.O.]. He was however 

able to recall statements he made to . . . [the 

investigator] that did not directly relate to [L.A.O.'s]

injury . . . . When asked on direct about his report to 

. . . [the investigator] the day following the incident, he 

stated that he unlocked the door for [L.A.O.] but did not 

go down[]stairs again. He testified that he told . . . [the 

investigator] that he did not see [T.A.] hit [L.A.O.]

On cross examination, [J.O.] testified that he did 

not go downstairs except to open the door for [L.A.O.] 

When asked if he heard [L.A.O.]'s voice when she came 

in, he reported that he did and that he heard [T.A.] greet 
11 A-5598-18

her back, despite previously testifying that he only 

heard noises not conversations. When asked by the 

DAG about his statements in the report where he told 

the case worker about a scuffle between [L.A.O.] and 

the defendants, he states that he didn't see this and he 

didn't go downstairs. He stated he didn't make these 

statements to . . . [the investigator].

The judge concluded it was "highly unlikely that he would report a false story 

to . . . [the investigator] the morning after the incident when it was fresh in his 

mind, and a more truthful story during his testimony weeks later," and found his 

testimony "highly inauthentic and simply not credible." 

The judge concluded the Division did not prove R.O. had committed abuse 

or neglect. The judge reached the opposite conclusion regarding T.A., stating:

Here, [T.A.'s] exercise of excessive corporal 

punishment meets the statutory criteria in Title 9. The 

law states that inflicting unnecessary severe corporal 

punishment on a child constitutes abuse. N.J.S.A. 9:6-

1. In fact, any act or omission that results in 

unnecessary physical suffering to a child constitutes 

abuse. Ibid. Engaging in an altercation with a 

misbehaving child that results in the child sustaining an 

eye injury clearly falls under Title 9. 

[L.A.O.] sustained a serious injury to her right 

eye, depicted in the photos taken the day following the 

incident . . . . The blow she received from [T.A.] caused 

her eye to swell and bruise, requiring her to be 

transported to the emergency room to be treated. She 

was ultimately referred to an eye clinic at the hospital 

due to the seriousness of her injury. [L.A.O.] did state 

that she had experienced physical discipline in the past, 
12 A-5598-18

however she did not describe receiving as serious an 

injury as a swollen and bruised eye. Even if [L.A.O.'s]

injuries were the result of a one-time incident, the 

injury to her eye caused serious swelling and bruising 

that would take a significant amount of time to heal. 

Her injury also included possible complications such as 

vision loss, infection[,] and cataracts.

In cases of corporal punishment courts look to the 

nature of the injury that the child sustains. In New 

Jersey Div[ision] of Youth & Family Serv[ices] v. R.S., 

187 [N.J.] 491 (2006), the Court found that because the 

grandmother left a mark on her grandchild, she abused 

him under the law. Here there is more than a mere 

mark. [T.A.'s] actions resulted in [L.A.O.] sustaining a 

severely swollen and injured eye. His actions easily 

meet the burden set by R.S.

Further, intent is not determinative of a finding 

of abuse and neglect under Title [Nine]. In G.S.[ v. 

New Jersey Division of Youth & Family Services, 157 

N.J. 161, 177 (1999)], the Court found that the party 

who inflicted excessive corporal punishment on a child 

did not have to have intended harm to be found liable 

under the law. Here, [defendant] might not have 

intended to seriously injure [L.A.O.'s] eye, but based on 

the evidence before the court[, i]t is clear that her injury 

was the result of his actions.

Regarding [L.A.O.'s] part in the struggle and her 

behavior leading up to the struggle, this court does not 

find her involvement to diminish the actions of [T.A.]. 

In cases where older children are actively involved in 

altercations with their parents, courts have held that an 

inquiry into each party's strengths and injuries is 

necessary to determine the existence of abuse. In New 

Jersey Div[ision] of Youth and Family Services v. M.C. 

III, 201 N.J. 328, (2010[]), the [C]ourt found abuse and 
13 A-5598-18

neglect by a father who engaged in an altercation with 

his two teenage children who were significantly smaller 

than he was, and which resulted in him grabbing his son 

by his neck. Id. [a]t 336. . . . Here, it was first reported 

by [L.A.O.] that the altercation involved both herself[,]

her mother and [T.A.] She later testified that it only 

involved her and [T.A.] on the stairs. [L.A.O.] testified 

and reported that [T.A.] held her around her waist to 

restrain her from going up the stairs with the phone. 

Whether the altercation included both [T.A.] and . . . 

[R.O.] or solely [T.A.], this was not an altercation of 

equal strengths. [T.A.] is a grown man and 

significantly larger than [L.A.O.] Furthermore, 

[L.A.O.] is the only one who suffered an injury from 

the altercation. Therefore, [T.A.'s] active participation 

in the altercation constituted abuse under the statute.

It is important that this court address [L.A.O.'s]

recanting of her initial statements regarding how she 

sustained her injury. Though [L.A.O.] ultimately 

changed her story as to how the injury occurred, and 

later testified that [T.A.] didn't cause her eye injury, the 

court finds her initial disclosure that [T.A.] caused her 

injury to be most credible. . . . [L.A.O.'s] initial 

disclosure was made directly after the incident, was 

made to multiple people, and was corroborated the 

same day by . . . [J.O.]. . . . [J.O.] told the Division an 

almost identical story to [L.A.O.'s] original report of 

the incident . . . . [He] made these statements, aligning 

with his sister's initial disclosure, before time passed 

and he had an opportunity to speak with his sister, his 

mother, or [T.A.]. For these reasons, [L.A.O.'s] initial 

statements, the consistency in her initial disclosures, 

[J.O.'s] initial report, and the injury itself provide 

adequate corroboration of [L.A.O.'s] first version of 

events.
14 A-5598-18

[L.A.O.] later changed her story, saying that 

[defendant] did not punch or slap her in the face causing 

the injury to her eye, but that it may have happened 

when the phone hit her eye. She stated this new version 

of events on November 19, 2018[,] at the RDTC 

medical evaluation . . . and on November 20, 2018[,] at 

the RDTC psychosocial evaluation . . . . She also 

testified to this new version of events, stating that she 

lied the first time because she was upset, and didn't 

understand the consequences of her lie, in that [T.A.] 

would have to leave the home. It is possible that 

[L.A.O.] didn't understand the seriousness or possible 

ramifications of the incident, and the subsequent 

involvement of the Division. However, this does not 

diminish the validity of her initial disclosure.

The testimony of [L.A.O.] and [J.O.] 

contradicted their initial disclosures to the 

Division. . . . Though [L.A.O.] testified that [T.A.] 

didn't hit her, when she was asked by the DAG if her 

mother hit her with a belt before or after "the punch or 

slap," [L.A.O.] responded quickly, "[b]efore." . . . 

[T]his answer is highly concerning. . . . 

A constant in both the initial disclosure of events 

and the version [L.A.O.] testified to, is her disrespectful 

behavior on the night of the altercation. It has been 

noted in the documentary evidence and in . . . [the 

investigator's] testimony that [R.O.] had concerns 

regarding [L.A.O.'s] behavior. . . . There is no question 

that [R.O.] had a reason to be upset at her daughter, as 

any mother would. [T.A.], as a father figure to 

[L.A.O.], also may have been upset at [her]

disrespectful and possibly reckless behavior. Despite 

this, [L.A.O.'s] behavior does not justify the excessive 

corporal punishment inflicted upon her . . . [and did]

not excuse the physical altercation that resulted in the 

serious injury to her eye. 
15 A-5598-18

. . . [T]he question before this court is how she sustained 

the injury to her eye. Several variations of the 

altercation have been presented to the court. In each of 

these variation[s there] remains one constant, [T.A.'s] 

physical involvement with [L.A.O.] to obtain the cell 

phone. In light of all of the evidence submitted, based 

on [L.A.O.'s] initial statements, the consistent 

corroboration of these statements by the case worker, 

[J.O.'s] initial statements and the injury itself, the court 

finds that [T.A.] caused [L.A.O.'s] eye injury during the 

altercation.

The judge entered the April 10, 2019 order finding, pursuant to N.J.S.A. 

9:6-8.21(c), the Division proved by a preponderance of evidence T.A. 

"physically abused [L.A.O.] . . . resulting in significant injury to her eye." In 

July 2019, the court entered an order terminating the litigation. 

T.A. raises the following points on appeal:

[POINT] I. THE COURT'S FINDING OF ABUSE 

RESULTS FROM AN ERRONEOUS EVALUATION 

OF THE FACTS AND IMPLICATIONS TO BE 

DRAWN THEREFROM BECAUSE ITS 

CREDIBILITY DETERMINATIONS DO NOT 

RESOLVE THE FACTUAL INCONSISTENCIES IN 

THE RECORD [O]R ADEQUATELY ADDRESS THE 

NEED FOR CORROBORATION OF THE 

CHILDREN'S OUT-OF-COURT STATEMENTS AS 

REQUIRED BY TITLE [NINE].

A. Unresolved Factual Inconsistencies and the 

Absence of Adequate, Substantial and Credible 

Evidence of Abuse.
16 A-5598-18

B. The [A]bsence of Adequate Corroboration to 

Support the Trial Court's Determination of 

Physical Abuse.

[POINT] II. EVEN ASSUMING ARGUENDO THAT 

[T.A.] HIT [L.A.O.], THE FACTS DO NOT SUPPORT 

A FINDING OF ABUSE AGAINST [T.A.] BY WAY 

OF EXCESSIVE CORPORAL PUNISHMENT 

ENCOMPASSED IN N.J.S.A. 9:6-8.21(C)(4)(B).

[POINT] III. THE COURT'S RESORT IN ITS 

SUPPLEMENTAL WRITTEN DECISION TO 

STATUTORY BASIS FOR ABUSE NOT PLED BY 

DCPP IN ITS ACTION AGAINST [T.A.] AND 

IMPLICATING OTHER AUTHORITY DEPRIVED 

[T.A.] OF ADEQUATE NOTICE AND AN 

OPPORTUNITY TO BE HEARD.

On the cross-appeal, the Law Guardian argues as follows:

[POINT I.] THE PREPONDERANCE OF EVIDENCE 

DOES NOT SUPPORT A FINDING THAT [T.A.] 

ABUSED [L.A.O.] PURSUANT [T]O N.J.S.A. 9:6-

8.21(C)(4).

POINT II[.] THERE WAS NO EVIDENCE OF "PER 

SE" EXCESSIVE CORPORAL PUNISHMENT.

POINT III[.] THE COURT DID NOT WEIGH 

MULTIPLE RELEVANT FACTORS.

POINT IV[.] THE ABERRANT INCIDENT 

EVIDENCES A FAMILY [I]N CRISIS MERITING 

[T]HE DIVISION'S ASSISTANCE PURSUANT [T]O 

N.J.S.A. 30:4C-12.
17 A-5598-18

I.

"The scope of appellate review of a trial court's fact-finding function is 

limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). A trial court's opinion is 

"binding on appeal when supported by adequate, substantial, credible evidence." 

Id. at 412 (citing Rova Farms Resort, Inc. v. Invs. Ins. Co., 65 N.J. 474, 484 

(1974)). "[T]he family court [enjoys] broad discretion because of its specialized 

knowledge and experience in matters involving parental relationships and the 

best interests of children." N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J. 

420, 427 (2012). "Deference is especially appropriate 'when the evidence is 

largely testimonial and involves questions of credibility.'" Cesare, 154 N.J. at 

412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). 

"Because a trial court 'hears the case, sees and observes the witnesses, [and] 

hears them testify,' it has a better perspective than a reviewing court in 

evaluating the veracity of witnesses.'" Ibid. (alteration in original) (quoting 

Pascale v. Pascale, 113 N.J. 20, 33 (1988)). 

Therefore, "[w]e do 'not disturb the "factual findings and legal conclusions 

of the trial judge unless . . . convinced that they are so manifestly unsupported 

by or inconsistent with the competent, relevant and reasonably credible evidence 

as to offend the interests of justice."'" Gnall v. Gnall, 222 N.J. 414, 428 (2015) 
18 A-5598-18

(alterations in original) (quoting Cesare, 154 N.J. at 412). However, we do not 

owe the trial court's interpretation of law any special deference. N.J. Div. of 

Youth & Fam. 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)).

II.

Points I and II of T.A.'s and Points I, II, and III of the Law Guardian's 

briefs collectively challenge the factual and credibility determinations made by 

the trial court. Specifically, T.A. argues there was inadequate evidence to 

support the judge's findings, the judge did not resolve the inconsistent 

statements made by L.A.O. and R.O., and the allegations of abuse lacked 

corroboration. He argues the facts did not support a finding of excessive 

corporal punishment because there was no evidence it resulted from abuse, 

L.A.O. did not suffer a severe injury, and there was no history of abuse. 

Similarly, the Law Guardian asserts: there was no evidence of excessive 

corporal punishment and the trial court did not weigh the N.J.A.C. 3A:10-7.5 

factors or assess the factors under Department of Children and Families, 

Division of Youth and Family Services v. K.A., 413 N.J. Super. 504 (App. Div. 

2010); the child's injury was not proven to be severe; and the totality of the 

circumstances show the injury was not the result of physical discipline, but an 
19 A-5598-18

accident arising from the struggle over the cellphone. The Law Guardian argues 

the judge did not consider that: R.O. was ill; L.A.O. was a model student, but 

was communicating with men against her mother's wishes; the family had no

history of involvement with the Division; and it was not initially evident the 

child was injured. 

N.J.S.A. 9:6-8.21(c) defines various circumstances that can comprise the

abuse or neglect of a child. Among other things, the statute specifically covers:

[A] child 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, as herein defined, 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. 9:6-8.21(c)(4)(b).]

Our Supreme Court has noted that the purpose of Title 9 is "to protect 

children 'who have had serious injury inflicted upon them' and make sure they 

are 'immediately safeguarded from further injury and possible death.'" N.J. Div. 

of Youth & Fam. Servs. v. A.L., 213 N.J. 1, 18 (2013) (quoting N.J.S.A. 9:6-

8.8(a)). "The law's 'paramount concern' is the 'safety of the children,' and not 
20 A-5598-18

the 'culpability of parental conduct[.]'" Ibid. (quoting N.J.S.A. 9:6-8.8(a); G.S.,

157 N.J. at 177). "The focus in abuse and neglect matters . . . is on promptly 

protecting a child who has suffered harm or faces imminent danger." A.L., 213 

N.J. at 18 (citing N.J.S.A. 9:6-8.21(c)(4)).

A court's finding of abuse or neglect must be based on a preponderance of 

the evidence when the proof is considered in its totality. N.J.S.A. 9:6-

8.46(b)(1); N.J. Div. of Youth & Fam. Servs. v. C.M., 181 N.J. Super. 190, 201 

(App. Div. 1981) ("In child abuse and neglect cases the elements of proof are 

synergistically related. Each proven act of neglect has some effect on the 

[child]. One act may be 'substantial' or the sum of many acts may be 

'substantial.'"). Notably, the Title 9 proof standard is less stringent than in 

guardianship cases for the termination of parental rights, which must instead be 

proven by clear and convincing evidence. See N.J.S.A. 30:4C-15.1(a).

We reject T.A. and the Law Guardian's contentions that there was 

inadequate evidence to support a finding of abuse. L.A.O.'s injury was severe 

as documented by her school, the hospital, and the investigator. Moreover, the 

judge painstakingly explained why she believed the initial reports by L.A.O. and 

J.O. respecting the incident and how L.A.O. received the injury were more 

credible than their subsequent attempts to change the facts after the Division's
21 A-5598-18

investigation began and even while testifying. Neither T.A. nor the Law 

Guardian have given us cause to second-guess the judge's detailed credibility 

findings. Contrary to T.A.'s assertions, the judge left no issue of fact unresolved 

and the substantial credible evidence does not support the theory that L.A.O.'s 

injury was either self-inflicted or the product of an accident. 

We also reject T.A. and the Law Guardian's challenge to the judge's 

finding there was excessive corporal punishment. In K.A. we stated:

[A]bsent statutory, regulatory, or case law guidance, we 

will define "excessive corporal punishment" by 

referring to common usage and understanding. As a 

starting point, we note that the statute condemns 

excessive corporal punishment. The term "excessive"

means going beyond what is proper or reasonable. 

Webster's II New College Dictionary 390 (Margery S. 

Berube ed., 1995). . . . [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.

[413 N.J. Super. at 511].

We also stated a trial court should consider the following factors: "(1) the 

reasons underlying [the parent's] actions; (2) the isolation of the incident; and 
22 A-5598-18

(3) the trying circumstances which [the parent] was undergoing[.]" Id. at 512. 

The court should also "evaluate a claim of abuse by looking to the harm suffered 

by the child, rather than the mental state of the accused abuser, because '[t]he 

main goal of Title 9 is to protect children[.]'" Id. at 511 (quoting G.S., 157 N.J. 

at 176). "[A]bsent evidence showing that the inflicted injury constitutes per se 

excessive corporal punishment, we must examine the circumstances facing [the 

parent] to determine whether [the conduct] amounted to excessive corporal 

punishment." Id. at 512. 

Here, there was ample evidence to support the finding the incident 

constituted per se excessive corporal punishment. Indeed, both L.A.O. and J.O. 

told the investigator the prior incidents of corporal punishment occurred were 

distant in time, infrequent, and never consisted of repeated blows and injury of 

the sort L.A.O. experienced the day of the incident. Moreover, under the K.A.

factors, one incident is sufficient for a finding of excessive corporal punishment 

and we are unconvinced there was a valid reason to harm L.A.O. in such a 

fashion or that the circumstances justified the child suffer such a harm. 2

2 T.A.'s conduct also met the statutory definition of abuse because L.A.O.'s 

"physical . . . condition [was] impaired . . . as the result of . . . [her] parent or 

guardian . . . unreasonably inflicting . . . harm . . . ." N.J.S.A. 9:6-8.21(c)(4)(b).
23 A-5598-18

III.

In Point III of T.A.'s brief, he argues the court erroneously referenced 

N.J.S.A. 9:6-1 and relied on its language defining "'cruelty' in arriving at its 

reasoning in support of a finding of child abuse in this matter." He claims the 

Division never "pled an action for abuse," and the judge's findings violated due 

process because he "was not on notice that he had to defend against allegations 

that his conduct amounted to abuse and neglect because it fell within the statute's 

broad definition of 'cruelty.'" 

We have stated: 

At a minimum, due process requires that a party in a 

judicial hearing receive "notice defining the issues and 

an adequate opportunity to prepare and respond." . . . 

[D]ue process forbids the trial court "to convert a 

hearing on a complaint alleging one act . . . into a 

hearing on other acts[.]"

[T.M.S. v. W.C.P., 450 N.J. Super. 499, 505 (App. Div.

2017) (quoting J.D. v. M.D.F., 207 N.J. 458, 478 

(2011)) (citations omitted).]

Our review of the record demonstrates there was no mystery the Division 

sought a finding pursuant to N.J.S.A. 9:6-8.21(c)(4)(b). Indeed, the Division's 

complaint, the evidence presented, the direct and cross-examination of the 

witnesses, and the court's findings all addressed whether there was excessive 

corporal punishment as defined under the statute. Therefore, T.A. had notice 
24 A-5598-18

and an opportunity to defend the Division's claims. The trial judge's reference 

to N.J.S.A. 9:6-1 in her opinion did not constitute reversible error. R. 2:10-2. 

"[A]ppeals are taken from judgments, not opinions." Arons v. N.J. Network, 

342 N.J. Super. 168, 181 (App. Div. 2001).

IV.

Finally, Point IV of the Law Guardian's argues this matter was better 

suited as a family crisis case under N.J.S.A. 30:4C-12, rather than an abuse or 

neglect matter under Title 9. We reject this contention. 

"The Legislature charged the Division with the responsibility of 

protecting the health and welfare of the children of this state. N.J.S.A. 30:4C4. The procedures for accomplishing those obligations are set forth in Title 

Nine, N.J.S.A. 9:6-8.21 to -8.73, and Title Thirty, N.J.S.A. 30:4C-11 to -14." 

N.J. Div. of Youth & Fam. Servs. v. G.M., 198 N.J. 382, 397 (2009) (emphasis 

added). Although "the Division usually pleads Title 9 and Title 30 claims 

concurrently in order to facilitate the efficient processing of assistance to the 

family, particularly to the child who is the focus of the inquiry[,] . . . Titles 9 

and 30 operate independently from one another." N.J. Dep't of Child. & Fams., 

Div. of Youth & Fam. Servs. v. I.S., 214 N.J. 8, 31, 37 (2013). And "the use of

N.J.S.A. 30:4C-12 is not a substitute for an abuse and neglect proceeding[.]" 
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N.J. Div. of Youth & Fam. Servs. v. J.C., 423 N.J. Super. 259, 267 (App. Div. 

2011). 

Affirmed.