RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0927-17T1

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

G.A. and A.A.,

Defendants,

and

E.M.,

Defendant-Appellant.

_____________________________________

IN THE MATTER OF L.M., EZ.M., A.M., 

and J.M., Minors.

_____________________________________

Submitted October 9, 2018 – Decided October 15, 2018

Before Judges Sabatino and Haas.

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Monmouth County, 

Docket No. FN-13-0250-16.

NOT FOR PUBLICATION WITHOUT THE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.
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Joseph E. Krakora, Public Defender, attorney for 

appellant (James D. O'Kelly, Designated Counsel, on 

the briefs).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Melissa H. Raksa, Assistant Attorney 

General, of counsel; Joshua P. Bohn, Deputy Attorney 

General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, 

attorney for minor L.M. (Todd S. Wilson, Designated 

Counsel, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, 

attorney for minor EZ.M. (Michele C. Scenna, 

Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, 

attorney for minor A.M. (Danielle Ruiz, Designated 

Counsel, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, 

attorney for minor J.M. (Linda Vele Alexander, 

Designated Counsel, on the brief).

PER CURIAM

This matter arises from a series of incidents in which the defendant father, 

E.M., abused his children by engaging in excessive corporal punishment. 1 In 

the most recent incident that was the focus of the court's fact-finding, the father 

beat his son, EZ.M. ("Emory") with a brush, because Emory came home late 

 

1 We use initials for the parties to protect their identities. R. 1:38-3(d)(12). We 

also use pseudonyms for some of the children for ease of the reader. 
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from school. An ensuing examination revealed marks on the child's leg that 

remained from when the father beat him with a computer cord roughly three 

months earlier. The Division of Child Protection and Permanency ("the 

Division") thereafter conducted an investigation, which included interviewing 

the child and his family members, and reviewing the results of a medical 

evaluation. After determining the allegations of child abuse or neglect were 

substantiated, the Division filed the present action for custody, care, and 

supervision of the four children. 

After the fact-finding hearing, the trial court determined the Division had 

proven by a preponderance of the evidence that the father had abused or 

neglected the children by inflicting excessive corporal punishment in violation 

of N.J.S.A. 9:6-8.21(c)(4)(b). Among other things, the trial court found the 

child's grandmother, the doctor, and a Division caseworker provided credible 

testimony to support the finding of abuse. This appeal by the father followed. 

We affirm. 

I.

On March 22, 2016, defendant E.M.'s daughter, L.M. ("Lori"), reported to 

her school's guidance counselor and a Division caseworker, Jennifer Gregorio, 

that E.M. had beaten Emory with a brush during the children's most recent visit 
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with E.M. This punishment occurred after Emory had come home late from 

school. When Lori asked Emory if he was okay, he reportedly replied, "I'm used 

to it." Lori's report prompted Gregorio to interview Emory, who corroborated 

Lori's report of the beating and described additional instances of his father's 

corporal punishment. 

E.M. stated to Division workers in the past that he intentionally does not 

leave marks when he strikes his children, in order to avoid detection. However, 

Emory stated to the contrary that he had sustained injuries and marks from such 

punishment in the past, and he referenced a mark on his upper thigh from a 

beating approximately three months earlier. Gregorio took Emory to the school 

nurse for examination and photographed the marks. 

After Emory's interview and examination, he was accompanied to police 

headquarters by Gregorio and a detective. The detective interviewed E.M. He 

denied the accusation of beating Emory with a brush, stating, "I haven't popped 

my kid in a long time." Gregorio arranged a protective plan, under which E.M.'s 

contact with Emory would be supervised around the clock by his paramour. The 

caseworker also arranged for Emory to be examined by Steven Kairys M.D., the 

following day. 
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Gregorio then conducted interviews with the paramour's children at their 

home, and traveled to defendant G.A.'s home where Emory's three siblings, Lori, 

A.M., and J.M., resided. Gregorio interviewed Emory's mother A.A., his 

siblings, and his maternal grandmother G.A. Emory is the only one of the four 

children who resides with E.M. Emory stated that his siblings "do not like 

visiting their father too much." All four children have expressed fear of their 

father, due to past instances of abuse. 

Based on these circumstances, the Division filed a Title Nine complaint 

in the Family Part in March 2016, seeking care, custody, and supervision of 

E.M.'s four children. The court granted the Division legal custody of the 

children and ordered that E.M.'s parenting time be suspended. G.A. was granted 

temporary custody of Emory by court order. 

Dr. Kairys' examination confirmed that the mark on Emory's leg was 

caused by being beaten with a cord or belt approximately three months earlier. 

Emory recounted to Dr. Kairys past instances of his father's abuse, telling the 

doctor that he did not want to live with his father. 

Both Gregorio and Dr. Kairys testified for the Division at the ensuing factfinding hearings in July and August 2016. G.A. testified on her own behalf at 
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the final hearing in December 2016, recounting her personal knowledge of 

E.M.'s abusive behavior that had occurred over the course of several years. 

G.A. testified she saw the children being hit by their father on multiple 

occasions. She observed marks left by their father's physical punishment, 

overheard E.M. abuse the children's mother in their presence, and was told by 

the children about their father beating them with objects, punching them, and 

throwing objects at them. 

E.M. was informed in advance that the final hearing would occur on 

December 7, 2016. However, he failed to appear in court on that scheduled date. 

Defense counsel expressed that E.M. wished to testify, and speculated that he 

might have been out of town, despite being on notice of the court date. Due to 

E.M.'s inexplicable absence, the court denied defense counsel's request for 

adjournment to allow E.M. to testify at a future date. 

Sifting through the evidence, the trial judge concluded the Division's 

witnesses were credible and that the Division had demonstrated, by a 

preponderance of the evidence, that E.M. engaged in excessive corporal 

punishment on multiple occasions. The court accordingly issued an order on 

December 7, 2016, finding that the four children had been abused or neglected 
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by their father. This appeal followed. The various Law Guardians for the 

respective children join with the Division in opposing the appeal.

II.

We proceed with a recognition of our limited scope of review of the 

Family Part judge's decision. We must defer to the factual findings of the Family 

Part if they are sustained by "adequate, substantial, and credible evidence" in 

the record. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 

(2014). Our reviewing courts afford particular deference to family court factfinding, due to the special jurisdiction of that court and its expertise in family 

matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998). The Court has also held 

that deference to a trial court's determinations is particularly warranted "when 

the evidence is largely testimonial and involves questions of credibility." 

Cesare, 154 N.J. at 412 (citation omitted). 

Nevertheless, where there is an alleged error in the trial court's evaluation 

of the underlying facts, the scope of appellate review is expanded. N.J. Div. of 

Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). However, deference 

in such circumstances should still be accorded unless it is determined that the 

trial judge's findings were clearly mistaken. G.L., 191 N.J. at 605. 
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E.M. argues the trial court denied him due process by allowing the 

Division to amend its pleadings at trial, allegedly relying on unestablished 

summaries of alleged past abuse, and in depriving him of an opportunity to 

testify in his own defense. Apart from these procedural contentions, E.M. argues 

the Division's evidence was insufficient to establish excessive corporal 

punishment. None of these arguments have merit.

The statutory context of this case is N.J.S.A. 9:6-8.21(c)(4)(b), which 

defines "an abused or neglected child" to include a child under the age of 

eighteen

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 . . . 

(b) 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[.] 

[(Emphasis added).]

The Division's regulations elaborate that evidence of "[c]uts, bruises, abrasions 

[or] welts" may reflect injuries to a child that will qualify as "abuse or neglect" 

under the statute. See N.J.A.C. 3A:10-2.2(a)(9). 
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A parent using corporal punishment may only inflict moderate correction 

that must be reasonable under the circumstances. See e.g., State v. T.C., 347 

N.J. Super. 219, 239-40 (App. Div. 2002). Force that exceeds this 

reasonableness limit is sufficient to trigger the statute. See, e.g., New Jersey 

Div. of Youth & Family Servs. v. S.H., 439 N.J. Super. 137, 147 (App. Div. 

2015) (holding that a parent administered excessive corporal punishment by 

striking a child with a golf club as discipline for using profanity, leaving the 

child with bruises); Dep't of Children & Families, Div. of Youth & Family Servs. 

v. C.H., 414 N.J. Super. 472, 481 (App. Div.), aff'd on reconsideration, 416 N.J. 

Super. 414 (App. Div. 2010) (holding that a mother committed actionable abuse 

or neglect through beating her daughter with a paddle).

The statute does not require that the child in question experience actual 

harm to constitute abuse or neglect. N.J.S.A. 9:6-8.21(c)(4)(b); see also N.J. 

Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 449 (2012) (explaining 

that the Division need not wait until a child experiences an actual injury) (citing 

In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (stating that the court 

does not need to "wait to act until a child is actually irreparably impaired by 

parental inattention or neglect.")). Instead, a child can be abused and neglected 
10 A-0927-17T1

if his or her physical, mental, or emotional condition has been "impaired or is in 

imminent danger of becoming impaired[.]" N.J.S.A. 9:6-8.21(c)(4). 

The Title Nine analysis is fact-sensitive, and the court must consider the 

totality of the circumstances. See N.J. Div. of Youth & Family Servs. v. P.W.R., 

205 N.J. 17, 33 (2011). The primary focus of the statute is to preserve the safety 

of the child. N.J.S.A. 9:6-8.8(a).

A.

E.M. contends the trial court acted unfairly in allowing the Division to 

amend its complaint during the fact-finding hearing to amend its allegations to 

include other past instances of corporal punishment. We disagree. The past 

allegations were pertinent to the Division's theory of an ongoing pattern of 

physical abuse. The trial court complied with N.J.S.A. 9:6-8.50(b), which 

authorizes the court to permit the Division to amend its allegations to conform 

to the evidence, so long as the charged parent is afforded a "reasonable time to 

prepare to answer the amended allegations." 

Here, the court provided E.M. and his counsel with nearly four months of 

notice between the second day of trial in August 2016 and the third and final 

day of trial in December 2016, at which time G.A. testified and related her 

knowledge concerning the repetitive instances of corporal punishment. There 
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was ample time for the defense to respond to, or attempt to counter, the 

allegations.

We reject E.M.'s argument that the Division and the trial court misused 

past unsubstantiated allegations against him as indicia of wrongful conduct. The 

evidence of past behavior was not presented as violations for the court to 

adjudicate in this case. Moreover, G.A. testified as to her personal knowledge 

of abuse that occurred in 2004 and again in 2007, not to unsubstantiated Division 

investigations. In addition, as further corroboration, the record contains 

multiple statements from the parties' children, and evidence of G.A.'s 

unsuccessful efforts to stop the abuse.

E.M.'s claim that he was deprived of a fair opportunity to testify as a 

witness in his own behalf is not borne out by the record. To be sure, parents 

have the right to testify in their own defense in Title Nine proceedings, N.J. Div. 

of Child Prot. & Permanency v. S.W., 448 N.J. Super. 180, 192 (App. Div. 

2017). Here, it was E.M., not the court, who deprived himself of the opportunity 

to testify. 

As we had already noted, E.M. had months of notice of the final hearing 

date at which he would be permitted to testify. Yet defense counsel did not 
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know why her client was absent, stating she heard "he might have been out of 

town for two weeks." 

E.M. has not presented any compelling justification for why he did not 

appear at the December 2016 final trial date. If he knew he was going to be out 

of town for the final scheduled hearing, E.M. could have requested an 

adjournment in advance. E.M.'s absence appears to have been anticipated, if not 

deliberate. 

E.M.'s circumstances concerning his opportunity to testify are 

distinguishable from the reported and unreported cases cited in his brief. Both 

cases involve parents who arrived late to their respective hearings, but who were 

not completely absent. Unlike the parents in those cases, E.M. demonstrated no 

effort to attend the hearing, despite having adequate notice of the court date, and 

did not explain his absence. He cannot fairly assert that the court deprived him 

of his right to testify. 

Given the importance of resolving child welfare cases expeditiously, we 

discern no abuse of discretion, let alone a denial of due process, arising from the 

trial court's decision to close the record and proceed to issue its final decision 

on the last scheduled day of trial.
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B.

We need not say much about the weight of the evidence in this case, or 

E.M.'s claim that the Division's proofs did not suffice to establish excessive 

corporal punishment by a preponderance of the evidence. We reject his claim 

substantially for the sound reasons expressed in Judge Terrence P. Flynn's 

decision. We add only a few comments.

The record clearly shows that E.M. harmed Emory through excessive 

corporal punishment on one or more occasions. First, Dr. Kairys's expert 

testimony stated that Emory was physically harmed when his father beat him 

with a computer cord, and that this was not an accidental or isolated incident. 

Dr. Kairys noted that E.M. had used enough force to break blood vessels in 

Emory's skin, produce bruising that was still visible three months after the 

incident, and cause Emory considerable pain. The expert explained that an 

inflicted injury that leaves marks and bruises in this manner is consistent with 

the medical definition of physical abuse or excessive physical discipline. Dr. 

Kairys also expressed his professional concern for future risk of harm to Emory 

if E.M.'s pattern of physical discipline did not change. 

In addition, G.A. testified that Emory has been in counseling to deal with 

the abuse, and that he quit the school's wrestling team because it triggered 
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memories of E.M.'s abuse. Furthermore, she testified to a journal in which 

Emory wrote that he had suicidal thoughts and considered running away because 

he couldn't take the abuse anymore. These signs of physical and emotional harm 

virtually speak for themselves.

In sum, E.M.'s procedural and substantive arguments provide no basis to 

set aside the trial court's well-reasoned findings of this parent's commission of 

abuse or neglect through the infliction of excessive corporal punishment.

Affirmed.