On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-75-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 8, 2008
Before Judges R. B. Coleman and Simonelli.
In these consolidated appeals, defendants, S.R. and M.R., challenge a February 22, 2008 order by the Chancery Division, Family Part, which memorializes the following determination by the court:
[T]he Division [of Youth and Family Services] established through its exhibits and the testimony that the child, [J.A.M.], was sexually abused. The burden shifted to the defendants to come forward with a defense. The defendants failed to move forward with any explanation as to the injuries. As such, the evidence before the Court is uncontroverted. Additionally the Court finds that [D.D.] failed to exercise a minimum degree of care in that she allowed her children to be cared for [by] individuals she knew little about, specifically two weeks in Newark, two hours away and allowing [S.R. and M.R.] to have regular child care of the children and she only knew them for six months.
We conclude that there was sufficient evidence to support the determination by the trial court and that the outcome was not the result of a misapplication of law, as argued by defendants.*fn1 We affirm.
Our summary of the facts is drawn primarily from the trial court's recitation of its findings. Between July 5 and 13, 2007, defendant D.D. left her two daughters, six-month-old J.A.M. and twenty-one-month-old D.M., in the care of paternal relatives in Newark. The children's visit was cut short because D.M. seemed upset and D.D. "got concerned." Thus, D.D. and her boyfriend, defendant S.R., retrieved the children from Newark on Friday evening. D.D. changed D.M.'s diaper, but someone else changed J.A.M.'s diaper before they started the trip home.
Upon her arrival in Clementon later Friday night, D.D. felt J.A.M.'s diaper and found it dry. Hence, she changed J.A.M.'s diaper for the first time after the children's stay with the paternal relatives on Saturday morning, July 14, 2007. She did so hurriedly and in a darkened room, illuminated only by a TV screen. In any event, she did not notice any injuries at that time. Moreover, J.A.M. did not cry or give any indication she was in any type of discomfort while in D.D.'s care. On Saturday morning, S.R. took D.D. to work, and by prior arrangement, S.R. and his mother, defendant M.R., were to care for the children while D.D. was at work.
After S.R. dropped D.D. at work, he went to pick up or to visit with a friend identified only as E. in Camden. As a result of this excursion, S.R. did not arrive with the children at his mother's house until about noon. Some time after he arrived at his mother's home, S.R. changed J.A.M.'s diaper and noticed she had a loose bowel movement, bruises on her buttocks and blood in her diaper. S.R. summoned M.R., who told S.R. that it appeared J.A.M. had a bad rash or bedsores from having been left in the car seat too long. She applied diaper rash cream and re-diapered the child. While defendants S.R. and M.R. maintain that one of them telephoned D.D. that afternoon to inform her about the sores on the baby, D.D. denied that anyone contacted her at work. She picked up the children around 8:00 p.m. and took them home.
At around 10:00 p.m., D.D. changed J.A.M.'s diaper and saw the injuries, which prompted her, accompanied by her father and S.R., to take J.A.M. to the hospital. At about 1:30 a.m., Sunday, July 15, 2008, J.A.M. was evaluated by triage nurse Kathleen Morse, who noticed blood on J.A.M.'s diapers. At 2:25 a.m., Dr. George Katzenbach examined J.A.M. and found "'bruising to the anus and abrasions around [the] anus.'" In the record he generated, Dr. Katzenbach wrote "dried blood to anus," and "abrasions to anus noticed today [sic] at 11:39 p.m." Dr. Katzenbach contacted the Division to report his suspicion of physical or sexual abuse. Sometime before the Division worker arrived at 5:50 a.m., S.R. was sent to his house to retrieve diapers from the trash and to pick up D.M. Although S.R. lived near the hospital, he was gone for a long time, and he failed to bring any diapers with him.
Relying on information related by D.D., Dr. Katzenbach indicated he initially believed that J.A.M. had sustained her injuries four or five days earlier, while she was in the care of her paternal relatives. Accordingly, he released J.A.M. to D.D., with instructions to take J.A.M. to see a doctor at New Jersey Cares on Monday, July 16, 2007. However, upon further review of the case, Dr. Katzenbach wrote an addendum to J.A.M.'s records stating, "Initially I thought bruising to buttocks was over 24 hours old. But reviewing the case, it is possible that the abrasions to the anus are fresher." Thus, Dr. Katzenbach contacted D.D. to inquire about S.R. and M.R. D.D. denied having any concerns about them, but she recalled she did not notice any bruises on Saturday morning. It was D.D.'s impression that J.A.M.'s bruises seemed to be fading. Finally, Dr. Katzenbach added to his report concerns regarding arguments between D.D. and S.R. observed at the hospital.
On July 16, 2007, Dr. Cindy DeLago, of New Jersey Cares, examined J.A.M. and D.M. During her examination of D.M., Dr. DeLago found "four bruises in unusual areas of the upper outer thighs, but no signs of sexual abuse." On the other hand, her examination of J.A.M. revealed "red and black bruises on the posterior aspect of the labia majora extending over the upper inner thighs of both legs, down her perineum, on her buttocks and up the entire length of the gluteal crease. She also had significant perianal bruising." According to Dr. DeLago, there was a "patterned bruising, consistent with fingermarks." In addition, she found two abrasions with "'moist bright red appearance of freshly denuded skin.' She saw no evidence of formation of new skin, which occurs over a three to five day period."
Dr. DeLago concluded that J.A.M.'s "injuries could only have been made by someone who was handling this child in a physically inappropriate manner." She added, "[m]oreover, the specific areas of most significant injury, the perianal and perineal areas, indicate this child was subjected to sexually inappropriate contact." However, Dr. DeLago found the timing of the injury "difficult to pinpoint."
On July 17, 2007, the Division conducted an emergency removal of both children. The Essex County police and Gloucester County prosecutors were involved, which precluded the Division from completing its investigation at that time.
On July 19, 2007, Dr. DeLago conducted a follow-up examination of J.A.M. and found normal healing of all injuries. Based on the rate of healing, Dr. DeLago opined that J.A.M.'s injuries occurred either Friday, July 13 or Saturday, July 14.
On July 23, 2007, the Division filed a verified complaint for custody of D.M. and J.A.M., pursuant to N.J.S.A. 9:6-8.21, N.J.S.A. 30:4C-12, and Rule 5:12-1. That complaint named as defendants the parents of the children, D.D. and Jo.M. On that date, the judge found that J.A.M. was sexually abused and that many individuals had access to her. The judge entered an order to show cause granting custody of the children to the Division. Subsequently, the Division filed an amended verified complaint, adding S.R. and M.R. as defendants, ...