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NJ Appeal Update – DYFS Cases (Corporal Punishment – Child Abuse)


by in Criminal Defense

The following appeal was recently decided pertaining to DYFS cases and finding that corporal punishment, under the facts, did not constitute abuse or neglect. Summary by Mark Friedman.

DYFS v. E.G.P. and C.P., unpublished opinion, App. Div. Docket No. A-1238-08T2 (November 6, 2009) – Order finding substantiated abuse and placing E.G.P.’s name in the child abuse registry reversed.

“In departing from the ALJ’s finding of no excessive corporal punishment, the Director specifically noted the eye injury to C.J. and the apparent force used to paddle both girls, evidenced by the fact that the paddle broke during the paddling. A finding of excessive corporal punishment inflicted upon C.J. and Z.J. does not, however, complete the definition of abuse or neglect under N.J.S.A. 9:6.8-21.

Rather, ‘as a part of its burden of proof, [in abuse and neglect cases] the State must still demonstrate by a preponderance of the competent, material and relevant evidence … the probability of present or future harm.’ N.J. Div. of Youth and Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004). This burden is met with proof that C.J. and Z.J. suffered physical, mental or emotional impairment or the risk thereof as a result of E.G.P.’s actions. N.J.S.A. 9:6.8-21(c)(4)(b).

The ALJ expressly found no such impairment or risk of impairment, determining that the incident was ‘isolated,’ the injuries were not serious, and there was no impairment or ‘imminent danger of becoming impaired.’ The Director did not reject these factual findings and in fact agreed that the actual harm to the teenagers was not ‘critically severe.’

While we discern no basis to disturb the Director’s finding that E.G.P.’s action constituted excessive corporal punishment, the absence of proof of the ‘probability of present or future harm’ to C.J. and Z.J., who were adults by the time of the hearing, renders the Division’s proofs lacking as to an essential element in the definition of abuse or neglect…. As such, we are constrained to reverse.” (Drew A. Molotsky)

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