Slapping rude child not child abuse
New Jersey Division of Youth and Family Services v. P.W.R. (A-79-09)
Argued October 13, 2010 -- Decided January 26, 2011
LAVECCHIA, J., writing for a unanimous Court.
In this appeal, the Court considers whether the trial court correctly found that defendant P.W.R.’s conduct with
regard to her stepdaughter constituted abuse and neglect under Title Nine, N.J.S.A. 9:6-8.21 to -8.73.
Alice was born on May 17, 1991. From 1993 to 2001, Alice’s paternal grandfather had custody of her while her
father, Charlie, pursued substance abuse treatment and rehabilitation. Alice returned to live with Charlie about 2001.
Charlie married P.W.R. (Pam) sometime thereafter. The grandfather remained involved in Alice’s life, but
eventually a strained father-son relationship caused Charlie to strictly limit Alice’s contact with her grandfather.
When Alice was sixteen, DYFS received a referral from Alice’s grandfather after she told him that she planned to
run away because Charlie and Pam were taking the earnings from her part-time job and Pam was slapping her
around. DYFS opened an investigation. Charlie admitted to DYFS that Pam had slapped Alice two years earlier
because she had skipped school and that Pam applied some of Alice’s earnings to the cable bill. Pam expressed
concerns about Alice’s sexual experimentation and a boyfriend relationship, and she admitted that Alice was
required to contribute $50 per month for cable and phone, but claimed that Alice’s other earnings were “banked.”
Two days later, Pam reported that Alice had run away. After she was located, Alice again informed DYFS that
Pam had a practice of slapping her. DYFS escorted Alice home and Pam and Charlie repeated their concerns about
Alice’s lying, sexual activity and immaturity. The DYFS worker noticed that the home was cold and messy. After
Alice spent the night with an aunt, DYFS effected Alice’s removal from Pam and Charlie’s home because of the
lack of heat and because Alice was fearful of returning home. During the removal, Charlie and Pam informed
DYFS that the home was cold because their oil tank was in need of repair. Both Charlie and Pam were unemployed
and they were using space heaters in critical rooms. The DYFS worker observed one of these heaters in the dining
room.
DYFS concluded that the allegations of physical abuse were unfounded, but it found substantiated the allegations
of neglect due to safety factors existing in the home and Alice’s fear of returning home. DFYS filed a complaint for
custody and an Order to Show Cause. During the preliminary hearing, at which Pam and Charlie appeared
unrepresented, the DYFS supervisor testified to Alice’s allegations of corporal punishment, the cold house, and her
fear of returning home. However, the supervisor told the court that the physical abuse allegations were unfounded
because Alice had no injuries and the hits did not rise to the level of abuse. Pam also testified, explaining that they
were using space heaters. The court found the removal appropriate due to the lack of central heating, history of
beatings, and Alice’s fear of returning home. The court placed Alice in DYFS’s custody and set a return date.
Although Pam and Charlie appeared in court on the return date, they did not appear for the subsequent factfinding
hearing. The court entered a default against Pam and Charlie, but permitted their attorney to cross-examine
witnesses and deliver summations. After the hearing, the court concluded that DYFS had proven that Charlie and
Pam abused and neglected Alice because Pam had slapped Alice, Charlie had not intervened, the house had no
central heat, Pam and Charlie took Alice’s earnings and provided no evidence that they were banking a portion, and
they isolated her from her grandfather. Although Pam had been taking Alice to Planned Parenthood for pregnancy
checks, the court also found medical neglect because Alice had not been seen by a pediatrician for two years.
Pam appealed. The Appellate Division concluded that the default was improper, but it affirmed the judgment
that abuse and neglect had occurred. 401 N.J. Super. 501 (2009). The Supreme Court granted Pam’s petition for
certification. 201 N.J. 440 (2010). Because Pam no longer challenged the issue of the default, the Court turned to
the merits of the judgment against her.
2
HELD: Because the record in this matter did not demonstrate proof of actionable abuse or neglect of a minor, the
court’s findings of violations under Title Nine, N.J.S.A. 9:6-8.21 to -8.73, were insufficient as a matter of law. The
judgment of the Appellate Division is reversed and the abuse and neglect judgment against P.W.R. is vacated.
1. The purpose animating Title Nine is to protect children under the age of 18 who have had serious injury inflicted
upon them. The statutory definition of an abused or neglected child includes “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 . . . to exercise a minimum degree of care (a) in supplying the child with adequate food,
clothing, shelter, education, medical or surgical care though financially able to do so or through offered financial or
other reasonable means to do so, or (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 . . . .” DYFS must prove abuse or neglect by a preponderance of evidence that is
competent, material and relevant. Previous statements by a child relating to allegations of abuse or neglect are
admissible in evidence, but such statements, if uncorroborated, are not sufficient to make a fact finding of abuse or
neglect. Finally, abuse and neglect cases are fact sensitive. For example, what may be excessive corporal
punishment for a younger child may not constitute excessive corporal punishment for an older child. (Pp. 16-23)
2. There was no evidence in this record showing the existence of bruises, scars, lacerations, fractures, or any other
medical ailment suffered by Alice as a result of Pam’s actions in occasionally slapping her. Although not to suggest
approval of such behavior, the Court finds that an occasional slap in the face of a teenager as discipline, with no
resulting bruising or marks, does not constitute excessive corporal punishment under the statute. Additionally, the
Court notes that even DYFS found the physical abuse allegations to be unfounded, and it did not argue before the
trial court that Alice was physically abused; therefore the court abused its discretion by utilizing the slaps as a basis
for a finding of physical abuse. It also caused a fair notice violation because no lay person served with the
complaint in this matter would reasonably read the complaint to indicate that a claim of physical abuse would be
advanced at the hearing. (Pp. 23—26)
3. The fact that there was a problem with the central heat in the home should not, standing alone, constitute neglect.
DYFS documents admitted into evidence demonstrated that space heaters were in use in the home and there is no
evidence that Charlie and Pam were financially able and refusing to cure the central heating problem or that DYFS
made any attempt to assist them in fixing it. Abuse or neglect also did not result from Pam and Charlie taking a
portion of Alice’s paychecks to support the family’s phone or cable bill. Requiring work-age children to contribute
to the support of the family is not an actionable reason to remove the child from the family home. Furthermore,
there was no evidence that Alice was in imminent danger of becoming impaired because she had not seen a
pediatrician for two years. She had been going with Pam to Planned Parenthood and DYFS never demonstrated a
physical condition, other than possible pregnancy, for which Alice required pediatric care that was not sought. (Pp.
26-28)
4. Finally, Pam and Charlie’s decision to limit Alice’s contact with her grandfather did not constitute actionable
emotional impairment. Parents have a fundamental right to parental autonomy, and the burden is on the grandparent
to establish by a preponderance of the evidence that visitation is necessary to avoid harm to the child. Here, there
was no showing that Alice suffered mental or emotional harm from the restricted contact with her father. In sum,
although no parenting awards are to be won on this record, actionable abuse or neglect was not proven. (Pp. 28-29)
The judgment of the Appellate Division is REVERSED and the abuse and neglect judgment against P.W.R. is
VACATED.
CHIEF JUSTICE RABNER and JUSTICES LONG, ALBIN, RIVERA-SOTO, HOENS and JUDGE
STERN (temporarily assigned) join in JUSTICE LaVECCHIA’s opinion.
