Dcpp v. S.p-s. and S.A., in the Matter of N.S.A.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0629-24

NEW JERSEY DIVISION

OF CHILD PROTECTION

AND PERMANENCY,

Plaintiff-Respondent,

v.

S.P-S.,

Defendant,

and

S.A.,

Defendant-Appellant.

___________________________

IN THE MATTER OF N.S.A.,

a minor.

____________________________

Submitted November 12, 2025 – Decided December 8, 2025

Before Judges Gooden Brown and Rose.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Essex County, Docket

No. FN-07-0152-23.

Jennifer N. Sellitti, Public Defender, attorney for

appellant (Kathleen A. Gallagher, Designated Counsel,

on the briefs).

Matthew J. Platkin, Attorney General, attorney for

respondent (Christopher Weber, Assistant Attorney

General, of counsel; Alicia Y. Bergman, Deputy

Attorney General, on the brief).

Jennifer N. Sellitti, Public Defender, Law Guardian,

attorney for minor (Meredith A. Pollock, Deputy Public

Defender, of counsel; Jennifer M. Sullivan, Assistant

Deputy Public Defender, of counsel and on the brief).

PER CURIAM

In this Title Nine action, defendant S.A. appeals from a September 19,

2024 Family Part order finding he abused or neglected his then sixteen-year-old

son, N.S.A. (Nicky),1 made final by an order terminating litigation issued that

same day. Defendant, who had sole custody of Nicky when the allegations arose

on May 6, 2023, argues the trial court erroneously: excluded evidence of his

post-traumatic stress disorder (PTSD), violating his right to due process; and

1

Consistent with the parties' briefs, we use initials to preserve the

confidentiality of the proceedings, R. 1:38-3(d)(12), and pseudonyms for ease

of reference.

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incorrectly determined he inflicted excessive corporal punishment without

considering "Nicky's documented behavioral disorders." Nicky's law guardian

joins the Division of Child Protection and Permanency, urging us to uphold the

abuse finding. Discerning no merit in defendant's evidentiary challenges and

concluding the family judge's decision was supported by sufficient credible

evidence in the record, we affirm.

I.

During the September 10, 2024 fact-finding hearing, the Division

presented the testimony of: its investigator, Jamila Austin,2 who testified about

the referral that prompted the investigation and her ensuing interviews of Nicky

and defendant; Shaina Groisberg, M.D., 3 who was qualified, by consent of all

parties, as an expert in pediatrics, and child abuse and neglect; and Nicky, who

testified remotely solely to authenticate the photographs he took of his injuries.

The Division also moved into evidence certain portions of its record, Dr.

Groisberg's report, and photographs of Nicky's injuries. Nicky's law guardian

did not present any evidence. Defendant testified on his own behalf.

2

Elsewhere in the record her name is spelled, "Jamillah Alston."

3

Elsewhere in the record her name is spelled, "Shayna Grossberg."

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Following closing arguments, Judge Nora J. Grimbergen reserved

decision and thereafter issued a cogent oral decision, detailing her factual and

credibility findings, and squarely addressing the issues presented in view of the

governing legal principles. We summarize the pertinent facts and events from

the record.

Nicky, born in 2007, is the biological child of defendant and S.P-S.

(Sally).4 From the age of five, Nicky resided with defendant, who had full

custody of the child. Sally lived in Florida.

The allegations of abuse arose on May 9, 2023, when the Division

received a referral that Nicky ran away from home two days earlier. Nicky's

maternal aunt found the child, who reported defendant had beaten him with an

extension cord.5 The aunt brought Nicky to the hospital.

That same day, the Division received a second referral from Rutgers

University Behavioral Health Center (RUBHC), where Nicky attended a weekly

4

Sally resided in Florida at the time of the incident and participated in the

proceedings, but is not a party to this appeal. The family's history with the

Division dates back to 2007, is detailed in the verified complaint, and need not

be reiterated here. We note only Sally's two other biological children, M.F.,

born 2018, and G.L., born 2010, are not parties to this appeal.

5

The instrument is referenced in the record as an extension cord and computer

cord.

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4

autism group and was undergoing psychological testing. When a RUBHC staff

member called defendant to confirm Nicky's testing schedule, defendant

disclosed Nicky "ran away" two days earlier. Defendant explained to the staff

member that while cleaning his home, "he found a backpack" containing "four

BB guns and hunting knives in [Nicky's backpack]." Defendant stated when he

confronted Nicky, the child said he planned to trade the weapons, but "did not

say what he was trading them for." Claiming he was "frustrated," defendant

"took a computer cord and 'wacked' the child on the back with it." Defendant

said "he th[ought] the child drugged him because he fell asleep while watching

[a] movie" and "[w]hen he woke up, the child had taken the bag and left."

Defendant said Nicky "erased his I-Phone location on [defendant's] phone."

Defendant reported Nicky missing to the police.

Austin spoke with Nicky at the hospital. Nicky stated he ran away because

defendant woke him at 4:00 a.m. and "accus[ed] him of stealing a laptop." Nicky

said when he asked his father to return the laptop to him, defendant "started

yelling at him and beating him with a computer cord" on his "back, chest[,] right

arm, left hand[,] and left shoulder." Austin noticed "multiple loop marks" on

Nicky's body. Claiming defendant "always use[d] objects like phone cords or

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extension cords when discipl[in]ing him," Nicky reported he felt unsafe at home.

Conversely, "he fe[lt] safe with his mom and aunt."

Austin reported Nicky's allegations and injuries to law enforcement and

later interviewed defendant at the local police station.6 Defendant's statement

to Austin largely mirrored his account to RUBHC staff. Defendant denied he

physically disciplined Nicky regularly, but acknowledged he hit Nicky with a

leather belt when the child was about five years old.

Following a Dodd removal7 on May 9, 2023, the Division filed a verified

complaint and an application for an order to show cause under Title Nine,

N.J.S.A. 9:6-8.21 to -8.73, and Title Thirty, N.J.S.A. 30:4C-12, alleging abuse

or neglect, and seeking care and supervision of Nicky. The Division also named

Sally as a defendant.

Defendant failed to appear on the May 11, 2023 return date. Judge

Grimbergen granted the Division's application to temporarily transfer sole legal

6

Police charged defendant with aggravated assault, child endangerment, and

weapons offenses. The disposition of these charges is not contained in the

record provided on appeal.

7

A Dodd removal is an emergency removal of a child from a parent's custody

without a court order pursuant to N.J.S.A. 9:6-8.21 to -8.82, known as the Dodd

Act. N.J. Div. of Youth & Fam. Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).

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and physical custody of Nicky from defendant to Sally, and ordered Sally to

temporarily remain in New Jersey.

The show cause hearing was held four days later on May 15, 2023. Judge

Grimbergen permitted Sally to return to her home in Florida with Nicky. On

that same day, Austin again met with defendant, who claimed he did not recall

speaking with her on May 9 because he was "out of it." Defendant reported he

had spine surgery and was medicated. Claiming "he was triggered" on the date

of the incident, defendant stated, "[Nicky] knows he doesn't like knives and guns

in his home as he was held at gunpoint in front of his house." Defendant told

Austin he "felt threatened by [Nicky] and his behavior."

Following the investigation, the Division "substantiated" the allegation of

abuse against defendant. Relevant to defendant's contentions on appeal, the

Division found "[a]ggravating [f]actors #5 an attempt to inflict any significant

or lasting physical, psychological, or emotional harm on the child[,] and #7 the

child['s] safety requires separation[] of the child from the perpetrator." See

N.J.A.C. 3A:10-7(a)(5) and (7). The Division did not find any mitigating

factors. See N.J.A.C. 3A:10-7.5(b) (1) to (4).8

8

In September 2023, defendant waived his right to a fact-finding hearing.

During an April 23, 2024 hearing, however, defendant claimed he was on

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At the fact-finding hearing, Dr. Groisberg testified about her May 12,

2023 evaluation of Nicky, including the child's account of the incident. During

her physical examination, Dr. Groisberg observed marks on Nicky's body, which

were consistent with Nicky's disclosure. Dr. Groisberg opined Nicky was

subjected to physical abuse because the marks "were consistent with being hit

with a cord, as [Nicky] described."

Defendant recounted his version of the incident. Defendant testified about

Nicky's mental health and behavioral issues, including the child's diagnoses.

Further, pertinent to his reprised contentions on appeal, defendant testified he

was involved in "incidents in the past where [he] was assaulted" and "a police

officer put a gun to [his] head and to [his] chest." When his attorney asked

defendant to describe those incidents, the judge sustained the Division's

objection on relevance grounds. However, the judge permitted defendant to

testify he struck Nicky because defendant suffered from PTSD and was

"triggered" when he observed "a gun in [Nicky]'s backpack."

medication when he made his waiver and, as such "was not in the right mindset."

Defendant was assigned new counsel. Judge Grimbergen thereafter granted

defendant's motion to set aside the stipulation and scheduled a fact-finding

hearing.

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In her decision that followed, Judge Grimbergen thoroughly addressed the

issues raised in view of the governing legal principles. Recounting the

testimony adduced at the hearing, the judge detailed her factual and credibility

findings. The judge credited the testimony of all witnesses, noting defendant

"acknowledged facts that were not in his favor" but "answered questions in a

reasonable manner" and "[h]is testimony was relatively consistent with his prior

statements."

Turning to the circumstances underpinning the present incident, Judge

Grimbergen was persuaded they differed from the facts in New Jersey Division

of Child Protection & Permanency v. K.A., 413 N.J. Super. 504 (App. Div.

2010). As the judge correctly recognized, in K.A., the child actively disobeyed

her parent, id. at 512, whereas here, Nicky was asleep and "not behaving in such

a way as to . . . require that type of punishment."

Acknowledging defendant's testimony that "he was triggered by seeing

guns" and "ha[d] a mental health diagnosis," the judge found defendant "should

[have been] in treatment to handle the effects of [a PTSD] diagnosis."

According to the judge, defendant's "failure to ensure he c[ould] manage his

mental health diagnosis also posed a risk to [Nicky], placing him in imminent

danger if [defendant] bec[ame] triggered." The judge concluded Nicky's injuries

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"were not the kind that would occur but for" defendant's "grossly negligent

actions," which placed Nicky "in imminent danger."

II.

Our circumscribed standard of review of the Family Part's fact-finding

determination is well established. See N.J. Div. of Youth & Fam. Servs. v. R.D.,

207 N.J. 88, 112 (2011). Given a family court's special expertise in matters

concerning children, appellate courts do not readily second-guess its factual

findings. N.J. Div. of Youth & Fam. Servs. v. R.G., 217 N.J. 527, 553 (2014).

Accordingly, on appeal from orders issued in Title Nine cases, we accord

considerable deference to the trial court's factual findings and credibility

determinations, as long as those findings are supported by "competent, material

and relevant evidence." N.J.S.A. 9:6-8.46(b); see also N.J. Div. of Child Prot.

& Permanency v. A.B., 231 N.J. 354, 369 (2017). We intervene only "if the trial

court's conclusions are 'clearly mistaken or wide of the mark.'" N.J. Div. of

Youth & Fam. Servs. v. L.L., 201 N.J. 210, 227 (2010) (quoting N.J. Div. of

Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008)).

We also afford "substantial deference to the trial judge's discretion on

evidentiary rulings." N.J. Div. of Youth & Fam. Servs. v. M.G., 427 N.J. Super.

154, 172 (App. Div. 2012). We owe no deference to the court's legal

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conclusions, which we review de novo. N.J. Div. of Child Prot. & Permanency

v. V.E., 448 N.J. Super. 374, 384 (App. Div. 2017).

Title Nine cases are fact sensitive and, as such, the trial court should "base

its findings on the totality of circumstances." N.J. Div. of Youth & Fam. Servs.

v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011). "The purpose of a fact-

finding hearing in an abuse or neglect proceeding is not to assign guilt to a

defendant, but to determine whether a child is an abused or neglected child

pursuant to N.J.S.A. 9:6-8.44." V.T., 423 N.J. Super. at 328. Thus, "[t]he

prevailing concern in abuse and neglect cases is the best interests of the child."

N.J. Div. of Child Prot. & Permanency v. S.G., 448 N.J. Super. 135, 146 (App.

Div. 2016); see also N.J.S.A. 9:6-8.8(a). Notably, the Title Nine proof standard

is less stringent than in guardianship cases for the termination of parental rights,

which instead must be proven by clear and convincing evidence. See N.J. Div.

of Child Prot. and Permanency v. R.L.M., 236 N.J. 123, 145 (2018); see also

N.J.S.A. 30:4C-15.1(a).

Pertinent to this appeal, an "abused or neglected child" under Title Nine

means

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 . . . to exercise a minimum degree of care . . . in

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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 . . . .

[N.J.S.A. 9:6-8.21(c)(4)(b).]

As Judge Grimbergen correctly recognized, "'[e]xcessive corporal

punishment' is not defined by statute, but is determined on a case-by-case basis."

N.J. Div. of Youth & Fam. Servs. v. S.H., 439 N.J. Super 137, 145 (App. Div.

2011). Our Supreme Court has recognized excessive corporal punishment cases

are fact sensitive, deeming them "idiosyncratic," and cautioning courts "ought

not assume that what may be 'excessive' corporal punishment for a younger child

must also constitute unreasonable infliction of harm, or excessive corporal

punishment in another setting involving an older child." N.J. Div. of Youth &

Fam. Servs. v. P.W.R., 205 N.J. 17, 33 (2011).

"The general proposition is that a parent may inflict moderate correction

such as is reasonable under the circumstances of a case." K.A., 413 N.J. Super.

at 510 (quoting State v. T.C., 347 N.J. Super. 219, 240 (App. Div. 2002)). But

punishment is excessive where it goes "beyond what is proper or reasonable."

Id. at 511. "[W]e evaluate a claim of abuse by looking to the harm suffered by

the child, rather than the mental state of the accused abuser." Ibid. That is

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because Title Nine's primary goal is the protection of children. G.S. v. Dep't of

Hum. Servs., 157 N.J. 161, 176 (1999).

Defendant's renewed reliance on K.A. is misplaced. In K.A., a mother

struck her psychologically disruptive eight-year-old daughter five times with a

closed fist, causing bruising. 413 N.J. Super. at 512. The incident occurred

after the child refused to do her homework or stay in "time-out." Id. at 505-06.

We considered "(1) the reasons underlying [the mother]'s actions; (2) the

isolation of the incident; and (3) the trying circumstances which [the mother]

was undergoing due to [her daughter]'s psychological disorder" to determine

whether her actions were "excessive." Id. at 512. We concluded the mother did

not commit excessive corporal punishment because she struck her child with her

fist after the child actively disobeyed her mother's instructions. Id. at 512-13.

However, we have not hesitated to recognize the administration of

excessive corporal punishment where the defendant used an instrument with

such force that it created visible marks on the victim. See e.g., S.H., 439 N.J.

Super. at 146-47 (affirming a finding of excessive corporal punishment where a

mother hit her fifteen-year-old son with a golf club and bit him on the shoulder,

causing bruising and marks); Dep't of Child. and Fams. v. C.H., 414 N.J. Super.

472, 476 (App. Div. 2010) (affirming a finding of excessive corporal

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punishment where a mother beat her daughter with a paddle in the face, back,

and arms); N.J. Div. of Youth & Fam. Servs. v. B.H., 391 N.J. Super. 322, 327-

35 (App. Div. 2007) (recognizing, in a termination of parental rights appeal, the

family judge found excessive corporal punishment where a mother hit her six-

year-old son with a belt in the face and elsewhere, leaving a welt).

In the present matter, unlike the mother in K.A., who struck her child with

a closed fist causing only bruising, 413 N.J. Super. at 512, defendant struck

Nicky several times with a cord, causing open wounds and bleeding. The use of

an object to inflict injury is a serious distinguishing factor when considering if

conduct rises to excessive corporal punishment. See S.H., 439 N.J. Super. at

146; C.H., 414 N.J. Super. at 481; B.H., 391 N.J. Super. at 340. Moreover, as

Judge Grimbergen found, Nicky was asleep when defendant found the guns and

knives in the child's backpack and, as such, Nicky was not actively disobeying

defendant at the time of the incident.

We turn briefly to defendant's evidentiary challenges. Citing N.J.R.E.

701, defendant argues his testimony concerning "his trauma-related symptoms"

would have provided critical context for his conduct. Defendant further

contends his PTSD was a mitigating factor under N.J.A.C. 3A:10-7.5(b), which

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should have been considered by the Division and the judge before finding Nicky

was an abused or neglected child.

N.J.R.E. 701 provides: "If a witness is not testifying as an expert, the

witness' testimony in the form of opinions or inferences may be admitted if it:

(a) is rationally based on the witness' perception; and (b) will assist in

understanding the witness' testimony or determining a fact in issue." N.J.R.E.

702 permits expert testimony "[i]f scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence or to determine

a fact in issue." Generally, expert testimony is required when the fact-finder

lacks "sufficient knowledge or experience" regarding the proffered evidence.

Torres v. Schripps, Inc., 342 N.J. 419, 430 (App. Div. 2001).

It is beyond peradventure that "[e]vidence must be relevant for it to be

admissible." State v. Scharf, 225 N.J. 547, 568 (2016). Evidence is relevant if

it tends "to prove or disprove any fact of consequence to the determination of

the action." N.J.R.E. 401. Relevant evidence generally is admissible, N.J.R.E.

402, although it "may be excluded if its probative value is substantially

outweighed by the risk of . . . [u]ndue prejudice, confusion of the issues, or

misleading the [fact-finder]," N.J.R.E. 403(a).

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In the present matter, we discern no error in the judge's decision excluding

as irrelevant defendant's testimony about his experiences with police and the

origins of his PTSD. That testimony did not tend to prove or disprove whether

defendant's use of corporal punishment was reasonable. In any event, in her

decision, the judge acknowledged defendant's testimony that he suffered from

PTSD, but found the lack of evidence demonstrating he was in treatment for that

diagnosis "posed a risk to [Nicky]." Further, because defendant's proposed

testimony was beyond the understanding of the average fact-finder, it required

expert testimony. See N.J.R.E. 702; see also Mullarney v. Bd. of Review, 343

N.J. Super. 401, 408 (App. Div. 2001) (requiring expert testimony to explain the

effects of mental illness on the proponent's behavior and judgment).

Nor are we persuaded the judge failed to properly consider Nicky's

behavior issues. We have recognized "the test for determining excessive

corporal punishment [is not] any different when the child has a disability." S.H.,

439 N.J. Super. at 149. "While these 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 protection under Title Nine as

non-disabled children." Id. at 149-50. "[T]he underlying behavior of a child,"

therefore "can be a relevant factor among the totality of the circumstances in

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assessing the reasonableness of the parent's response to the child's outburst." Id.

at 150. But the child's behavior is evaluated at the time the corporal punishment

is inflicted. Compare K.A., 413 N.J. Super. at 512 (recognizing the child's

repeated disobedience despite her mother's instructions created a trying situation

relevant to the reasonableness of the corporal punishment); with S.H., 439 N.J.

Super. at 148-50 (holding the child's use of profanity while seated on a couch

did not justify the mother's violent response).

In summary, pursuant to our limited standard of review, see R.G., 217 N.J.

at 553, we affirm the fact-finding order substantially for the reasons expressed

by Judge Grimbergen in her well-reasoned decision, which is supported by

"competent, material[,] and relevant evidence" in the record, N.J.S.A. 9:6-

8.46(b).

To the extent not addressed, defendant's remaining arguments lack

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We add only defendant's contention that the Division failed to consider his

PTSD as a factor in mitigation of its "substantiated" finding, is misplaced. The

Division's administrative findings are not relevant to these proceedings. See

N.J.A.C. 3A:10-7.3.

Affirmed.

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