December 12, 2007
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF R.D., A MINOR.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FN-11-72-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 24, 2007
Before Judges Lihotz and Simonelli.
Defendant appeals from the trial judge's determination that he abused or neglected R.D., and requiring placement of his name in the Central Registry of substantiated child abusers maintained by the Division of Youth and Family Services (DYFS) pursuant to N.J.S.A. 9:6-8.11. On appeal, defendant raises the following arguments:
THE TRIAL COURT'S DECISION MUST BE REVERSED BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO FIND GROSS NEGLIGENCE OR RECKLESS CONDUCT TO SUPPORT A CONCLUSION OF ABUSE AND NEGLECT.
THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR BY REFUSING TO CONSIDER THE EXCULPATORY STATEMENTS OF R.D.'S SIBLING, WHO IMPLICATED THE MOTHER.
We reject these arguments and affirm.
R.D. was born on May 18, 2006. L.D. is the biological mother of R.D. and B.D.B., born March 12, 2003.*fn1 Defendant and L.D. initially believed defendant was R.D.'s biological father. However, at a fact-finding hearing on January 9, 2007, it was conclusively determined defendant was not R.D.'s biological father.
On May 28, 2006, R.D., then ten-days-old, was in defendant's sole care. R.D. was seated in a five-point harness car seat attached to a stroller. The baby fell out of the car seat and hit his head when defendant attempted to push the stroller up a staircase. Defendant attributed the fall to a loose harness strap on the car seat. L.D. took R.D. to the emergency room. R.D.'s physical examination was normal and a CT scan of his head was negative. He was diagnosed as having a contusion and discharged.
R.D.'s routine health examinations on May 31, and June 14, 2006 were normal, with the doctor noting he "moves extremities" and "lungs clear to auscultation."
R.D. went to the doctor on July 6, 2006, because he had a poor appetite, no bowel movements and was crying all night and day. R.D.'s physical examination was normal, but the doctor diagnosed him as having abdominal pain. The doctor again noted R.D. "moves extremities" and "lungs clear to auscultation."
On or about July 30, 2006, R.D., then ten-weeks-old, was again in defendant's sole care. Defendant was watching R.D. while L.D. took a shower. R.D. was seated unstrapped in a car seat placed on the floor. Defendant fell asleep on a nearby couch. When defendant awoke, he discovered R.D. had fallen out of the car seat and onto the floor. Defendant suggested he might have kicked R.D. out of the car seat while asleep, but was unsure of the true cause of the child's fall. Defendant claimed he did not tell L.D. what had happened because he had checked R.D. for bruises and found none. However, later that day, L.D. and R.D. were at a family gathering when family members asked
L.D. what happened to R.D.'s eye, which was significantly swollen and discolored. L.D. called defendant and asked what happened. Defendant said nothing had happened.
L.D. took R.D. to the emergency room. L.D. reported to hospital staff that R.D.'s eye was swollen and she was not sure if something bit him. An examination of R.D.'s right cheek revealed it was red, discolored and painful, and there was swelling and erythema under his right eye. No imaging studies were performed. A doctor diagnosed R.D. as having a possible insect bite, but could not rule out a bruise.
R.D. went to the doctor on August 1, 2006, because he was sneezing and had watery eyes. The doctor diagnosed R.D. as having respiratory syncytial virus. No laboratory studies were performed to confirm this diagnosis.
On August 28, 2006, defendant and L.D. brought R.D. to the emergency room because of a sudden onset of decreased use of his left arm. A physical examination revealed acute swelling in the upper arm area and tenderness upon palpation. X-rays of the left arm revealed a "Healing fracture mid shaft of left humerus and likely a growth plate fracture of the proximal left humerus," and "Multiple left-sided lateral rib deformities, likely representing healing rib fractures. Non-accidental trauma cannot be excluded." A bone survey revealed "Old fracture of the mid shaft of the left humerus. Old bilateral fractures noted. Possible post traumatic changes involving the mid shaft of the left femur as well."
In all, R.D., then three-months-old, had a fractured arm, and six fractured ribs, which were approximately three to four-weeks-old and in the process of healing. When questioned by a doctor about the fractures, defendant reported "dropping [R.D.] out of his car seat at 10 days of age." Defendant gave no other explanation as to what may have caused the fractures and did not implicate L.D. as the cause. The doctor did not agree with defendant's explanation, noting, "Determinations as to the etiology of the rib fractures and humerus fracture related to [R.D.'s] fall at the age 10 days cannot be made. The fractures, however, are old and well healed." The hospital contacted DYFS.
DYFS employees, Elisa Billups and Carol Orawsky, responded to the hospital. They began an investigation and questioned defendant and L.D. about the fractures. As a result of the investigation, DYFS filed a Verified Complaint and Order to Show Cause on August 30, 2006. The trial judge granted DYFS legal and physical custody of R.D. and B.D.B. and ordered the children removed from the home. DYFS removed the children and placed them with relatives.
The trial court held a fact-finding hearing on January 9, 2007. Billups testified that both defendant and L.D. stated R.D. was always home with them. L.D. stated she did not know how the fractures occurred, but there were two prior occasions when R.D. was injured while in defendant's sole care. Defendant suggested the fractures may have occurred as a result of R.D.'s fall from his car seat on May 28, 2006. Defendant also admitted he played rough with R.D. at times. Defendant gave no other explanations as to what may have caused the fractures and did not implicate L.D.
Billups also interviewed B.D.B., then three-years-old. When she asked B.D.B. who hurt R.D., he replied, "My mommy." Billups then asked "What did mommy do?" B.D.B. stated, "her (sic) broke his arm and he was crying." Billups was unsure about the reliability of these statements because when B.D.B. made them, he had been sitting in the hospital from approximately 5:30 p.m. to "one or two in the morning, listening to adults talk," and was "playing with a can, distracted, and I felt he was repeating everything that he heard."
Orawsky testified she asked defendant and L.D. how the fractures occurred. Defendant again only said the fractures could have occurred as a result of the May 28, 2006 incident. He also demonstrated how R.D. fell out of the car seat. L.D. stated she did not know how the fractures occurred, and she was not present during the May 28, 2006, incident.
Dr. Elizabeth Hodgson, M.D., an expert in general pediatrics, testified R.D. had no signs of altered use of his arms and legs after his fall on May 28, 2006, as indicated by his visits to the doctor on May 31, June 14, and July 6, 2006. She also testified R.D. was misdiagnosed with respiratory syncytial virus on August 1, 2006, because such a diagnosis in early August is "highly unusual." She opined R.D.'s respiratory congestion, along with other symptoms, was consistent with blood in the chest as a result of the rib fractures. The doctor also opined:
And the timing and the age of the healing rib fractures and indeed the age of the healing mid-shaft fracture of the left humerus all could have been consistent with the time of the acute change in the left cheek and other internal injuries that simply were not thought about.
I have to say when I see a [child] who is not yet mobile, one of the things I always say to people, residents and others that we try to reach about recognition of child abuse, if it doesn't cruise, it shouldn't bruise. If a child is not yet mobile, and cruising on their own, they should not have bruising and particularly the finding of facial bruising in a child under one year of age is highly coincident with inflicted injury and usually deserves a very thorough evaluation.
So, if you're asking for when there possibly was timing and evidence of previous injury that resulted in these multiple healing rib fractures and humerus fracture that was finally found the end of August, I will stack my deck on that July 30th episode.
Regarding the August 28, 2006 emergency room visit, the doctor opined:
The reason for his admission, obviously, was that this was an uncomfortable baby who was at least showing signs of acute injury to the left arm. This baby was three and a half months old, not quite four months old at the time he was admitted and a baby of this age is not yet mobile on his own. Therefore, his normal course of activities would not have caused these injuries and these injures in multiple stages of healing. And at the time of admission, neither his mother, nor his alleged biologic father, could offer any explanation or mechanism of injury that would account for these two significant episodes of injury.
Dr. Hodgson concluded:
My opinion is that this baby suffered inflicted injuries with a high degree of medical certainty. And, the reasoning for that is that he was three and a half month [sic] old at the time he was found to have significant bony injuries in two different stages of healing. This baby's own activity did not result in his incurring these injuries from his own activity. The history of him having fallen out of a car seat at ten days of age did not show any acute head injury which is the injury one might expect from a fall out of a car seat onto a floor and, indeed, the age of these bony fractures which I reviewed with our pediatric radiologist ultimately when we did review all of the x-rays, certainly placed these healing fractures and the acute injury to his left arm in a time frame that was consistent with injury that happened in July and not in the end of May.
So, my opinion is this baby suffered significant inflicted injury, with a high degree of medical certainty, and on more than one occasion.
In an effort to prove L.D.'s culpability for R.D.'s injuries, the State produced B.D.B.'s medical records, which showed B.D.B. had six emergency room treatments from April 10, 2003, to December 24, 2004, for thrush, rashes, acute gastroenteritis and scabies, and four from November 29, 2005, to July 6, 2006, for lacerations, two of which required stitches. However, DYFS received no referrals as a result of any of these emergency room visits or made any determination that B.D.B. was at risk of abuse.
Defendant and L.D. did not testify at the fact-finding hearing or present any evidence disputing the State's evidence. Defendant presented a record of B.D.B.'s physical examination on August 28, 2006, which was normal.
The trial judge found R.D.'s injuries were not accidental or caused by his fall on May 28, 2006. The judge also found defendant abused or neglected R.D. Relying on N.J.S.A. 9:6-8.21c(4)(b), the judge concluded: One thing is for certain, and unrefuted throughout this hearing is that I am convinced and will so find, that each time that there is a plausible explanation to how the injury occurred to the child, the child is in the care of [defendant]. That has not been refuted.
It is for those reasons that the Court will find that [defendant] neglected this child and/or abused the child on the unspecified days in question. I would agree with Dr. Hodgson that it was a missed diagnosis on July 30th, and when the child had been taken to the doctors, that that is when this child, essentially was injured and it was not picked up by the ER doctor, who had examined the child.
Now the interesting thing is, is does this Court, again, need to find that it was intentionally done. I would suggest to all of you that I need not. It's not in the statute. And, quite frankly, my view is, is that if, in fact, it was intentionally done, although the statute covers that, then that really will lend itself to any criminal investigation if the authorities find it appropriate. But I need not even go that far in that statute. I make the finding against [M.P.] that he neglected and abused this child by his failure to properly supervise the child on the date in question.
He's the one who reported that this child, at ten days old, fell out of a stroller.
That doesn't happen with ten year (sic) old kids. He's the one that reported, perhaps, I fell asleep and kicked the car seat.
Things that should not happen to infants.
The judge declined to find L.D. neglected or abused R.D. However, he expressed his concern about her ability to properly supervise her children or make sure others properly supervised them, stating:
The Court is convinced that [L.D.] acted appropriately, there was nothing suggested and adduced by the Division, that would suggest or point to her being the culprit in this matter and there's nothing to suggest that she was responsible for the injuries because it was she, and on occasion with [M.P.], she acted appropriately and there was a delay of a day or two on one of the incidents, but the problem that the Court has is that there's really lack of proofs, if you will, to suggest that [L.D.] was neglectful to the child.
The judge continued DYFS's involvement with L.D. and returned B.D.B. and R.D. to her under DYFS's supervision. He ordered DYFS to monitor L.D. "to ensure that these things were just coincidental, and not a failure to act by [L.D.]." The judge also dismissed M.P. from the case because he is not R.D.'s biological father.
Based on the record before us, we would be remiss if we did not express our concern about the return of the children to L.D. However, the only issue before us is whether the trial judge erred in determining defendant abused or neglected R.D.
Defendant contends since there was no allegation of corporal punishment, DYFS must prove he abused or neglected R.D. under N.J.S.A. 9:6-8.21c(4)(b) with evidence of recklessness or gross or wanton misconduct. He also contends the trial judge erred in finding he abused or neglected R.D. because there were insufficient facts in the record to establish recklessness or gross or wanton misconduct. We reject these contentions and determine there was sufficient competent, material and relevant evidence that defendant abused or neglected R.D. under N.J.S.A. 9:6-21c(4)(b).
Our review of a trial judge's findings is a limited one. Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963). We will not "'engage in an independent assessment of the evidence as if [we] were the court of first instance,'" N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)), and will reverse only if we are convinced the trial judge's factual findings and legal conclusions "are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Fagliarone, supra, 78 N.J. Super. at 155.
Given the special jurisdiction and expertise of a family court judge, we accord deference to that judge's fact-finding. Cesare v. Cesare, 154 N.J. 394, 413 (1998). We also afford deferential respect to a family judge's credibility determinations. N.J. Div. of Youth and Family Servs. v. H.B., 375 N.J. Super. 148, 172 (App. Div. 2005) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). However, a "trial judge's findings are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." Z.P.R., supra, 351 N.J. Super. at 434 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 149 N.J. 366, 378 (1995)). With these standards in mind, we address defendant's contentions.
N.J.S.A. 9:6-8.21c defines an "abused or neglected child," in part, as:
[A] child less than 18 years of age . . .
(4) . . . 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 . . . (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[.]
In determining whether there was a failure to exercise a minimum degree of care, the court "must focus on the circumstances leading up to the injury and on the harm to the child, and not on the guardian's intent." G.S. v. Dep't of Human Servs., 157 N.J. 161, 176 (1999). It is irrelevant whether the parent or guardian intentionally inflicted the resulting injuries. Id. at 175. Accidentally-caused injuries can form the basis of child abuse when "a guardian fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." Id. at 181 (citing In re Sellnow v. Perales, 551 N.Y.S. 2d 428, 429 (App. Div. 1990)).
Where there is an accidental injury to a child, the court "should focus on the harm to the child and whether that harm could have been prevented had the guardian performed some act to remedy the situation or remove the danger," and find that a guardian has failed to exercise a minimum degree of care as a matter of law "[w]hen a cautionary act by the guardian would prevent a child from having his or her physical, mental or emotional condition impaired[.]" Id. at 182.
In addition, at a fact-finding hearing, it is the State's burden to prove by a preponderance of the competent, material and relevant evidence that the child is an abused or neglected child. N.J.S.A. 9:6-8.46b(1)-(2). However, in situations where a "limited number of persons have access to or custody of an infant during the period when an abuse concededly occurs, the burden shifts to those persons to come forward and provide evidence to establish their non-culpability for that abuse." N.J. Div. of Youth and Family Servs. v. S.S., 275 N.J. Super. 173, 179 (App. Div. 1994) (citing In re D.T., 229 N.J. Super. 509, 517 (App. Div. 1988)). The burden shifts in the following situation:
[O]nce the [State] has established the existence of injuries sustained by the child which are substantial in character while the child was in the lawful custody of his parents or other person legally responsible for his care, then [the State] is deemed to have established a prima facie case and the burden of coming forward with proof shifts from the [State] to the [defendant] who is then required to offer a satisfactory explanation concerning these injuries. [S.S., supra, 275 N.J. Super. at 180 n.2 (quoting In re Young, 270 N.Y.S. 2d 250, 253 (Fam. Ct. 1966)).]
Here, defendant conceded R.D. was injured, and there is sufficient evidence, including defendant's statements to hospital staff, Billups and Orawsky that R.D. was in his sole care when the injuries occurred. Dr. Hodgson's undisputed testimony confirmed R.D.'s injuries were substantial in character and occurred on July 30, 2006, when R.D. was in defendant's sole care. Based upon the evidence, the trial judge properly found the State had established by a preponderance of the evidence that defendant abused or neglected R.D. by failing to properly supervise him, causing him to be harmed. There is little doubt R.D.'s physical condition was impaired as the result of defendant's failure to exercise a minimum degree of care in providing the child with proper supervision by allowing him to be harmed or face a substantial risk of harm.
Since the State established a prima facie case against defendant, the burden then shifted to him to offer a satisfactory explanation for the injuries. Defendant did not meet his burden. He provided no explanation for R.D.'s injuries other than the May 28, 2006 incident or his rough play with the child, and presented no competent evidence whatsoever supporting his argument that L.D. is to blame.
We agree with the trial judge that in R.D.'s short life, while he was in defendant's sole care, he was injured or put at grave risk of injury. At ten days of age, R.D. fell out of a car seat and was injured because of a loose harness strap. Defendant could have prevented this harm had he properly fastened the harness strap. At three months of age, R.D. fell out of a car seat and was injured. Defendant fell asleep and apparently kicked the car seat so hard that it caused the baby to fall. Defendant could have prevented this harm by staying awake while he cared for R.D., or assuring the child was properly fastened in the car seat and placed in a position where the car seat could not have been kicked over. Defendant also should have realized that his "rough play" with an infant, such as R.D., could have injured the child.
Considering the inquiry under G.S. focuses on the harm to the child and whether it could have been prevented, it is clear from the evidence defendant abused or neglected R.D. by failing to adequately supervise the child, which resulted in serious injury.
Defendant next contends the trial court erred in refusing to consider B.D.B.'s statements implicating L.D. The judge heard testimony about B.D.B.'s statements, but it is unclear from the record whether he struck them from the record as uncorroborated. N.J.S.A. 9:6-8.46a(4). Nevertheless, the judge did not rely on the statements in rendering his decision.
As we previously stated, we accord deference to a family judge's fact-finding, Cesare, supra, 154 N.J. at 413, and afford deferential respect to a family judge's credibility determinations. H.B., supra, 375 N.J. Super. at 172. Where the trial judge has made credibility determinations, even without specifically articulating detailed findings of credibility, but the reasons for the determination may be inferred from the record, we are not free to make our own credibility determination. Locurto, supra, 157 N.J. at 474. Moreover, evidentiary rulings made by the trial judge in the course of a trial, which do not involve "asserted constitutional or statutory right[s] to refuse to testify," are addressed to that judge's discretion and will be reversed on appeal only if an "abuse" of that discretion is shown. State v. Burns, 192 N.J. 312, 332 (2007).
Here, the judge chose not to rely upon B.D.B.'s statements presumably because they lacked credibility and were uncorroborated. In view of the lack of any competent evidence establishing either the reliability of the statements or the culpability of L.D., and in view of the competent evidence pointing solely to defendant as the one who abused or neglected the child, the judge's decision not to rely on B.D.B.'s statements was not an abuse of discretion.