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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...