On appeal from the Superior Court Of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FN-13-240-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 30, 2009
Before Judges Wefing, Grall and Messano.
The New Jersey Division of Youth and Family Services (D.Y.F.S. or the Division) appeals from the Family Part orders that: 1) returned to defendant, S.S., custody of her two children, J.S.(1) and J.S.(2), concluding that she had not abused or neglected the children; and 2) subsequently terminated the litigation. D.Y.F.S. and the children's Law Guardian contend that the trial judge's factual findings were "manifestly unsupported by and inconsistent with the competent, relevant and reasonably credible evidence produced at trial[.]" We have considered this contention in light of the record and applicable legal standards. We affirm.
S.S. is the mother of five children: J.S.(1), born February 2, 2001; J.S.(2), born August 19, 2003; J.S.(3), born September 5, 2004; J.S.(4), born November 7, 2005; and B.C., Jr., born November 24, 2007. D.Y.F.S. first became involved with the family on September 28, 2002 when it received a referral that an infant born to S.S. and B.C. had died.*fn1
Following autopsy, the death was attributed to Sudden Infant Death Syndrome, and soon thereafter, the case was closed. On March 1, 2005, D.Y.F.S. received a referral that J.S.(1) had arrived at "daycare with a bruise on the left side of his face and bruises near his left temple, on his back and right shoulder." However, a pediatrician determined these were caused by another child.
On May 15, 2008, D.Y.F.S. received a referral from J.S.(2)'s daycare provider that the child arrived "with two cuts on his face." When asked about the marks, J.S.(2) "said his mother hit him with a brush." Later, J.S.(2) was taken to the Monmouth County Prosecutor's Office to be interviewed. The Prosecutor's Office declined further investigation or prosecution because J.S.(2)'s injuries were minor "and his disclosures were" unreliable. Nevertheless, D.Y.F.S. interviewed defendant about J.S.(2)'s injuries.
Defendant stated that the child's injuries resulted from playing football, basketball, and roughhousing at a barbecue. Defendant claimed that when she spoke to J.S.(2) about the injuries, he gave conflicting stories. A D.Y.F.S. worker interviewed J.S.(1) and J.S.(2) separately, and outside the presence of their mother. J.S.(2) told the worker that S.S. "hit him in the face with a stick." The worker interviewed J.S.(1) about his brother's injuries, and he gave multiple, conflicting accounts. First, he said that defendant pushed J.S.(2) into a wall; later, he claimed that defendant pushed J.S.(2) into a dresser. The worker's attempts to clarify the information with the child were futile. After waiting an hour, the worker again interviewed J.S.(1). This time, the child blamed his brother's injuries upon playing football. He then claimed that his other siblings caused J.S.(2)'s injuries.
D.Y.F.S. decided to remove the children from the home and filed an Order to Show Cause and Verified Complaint seeking emergency removal of all five children from defendant's custody and care. On May 15, 2008, Judge Terence P. Flynn granted D.Y.F.S.'s request, and the children were temporarily placed in the custody of their paternal aunt and in foster care.
Judge Flynn conducted a fact-finding hearing on September 2, 2008. The evidence adduced from the testimony of D.Y.F.S. investigator Lakesha Nicole Green and the Division's records revealed that on the day he was removed from defendant's custody, J.S.(1) told D.Y.F.S. workers that defendant hit the children "with a switch." He claimed that defendant told him to get the switch off a tree and then struck him in the face, neck, and back.
Doctor Steven Kairys, the Director of the Child Protection Center of Jersey Shore University Medical Center, testified at the hearing that he examined J.S.(1) and J.S.(2) later on the day of their removal. His observations about J.S.(1) included the following:
On his upper back on both right and left sides he has linear marks. There are three parallel on the right side and three parallel on the left side. Each is about three to five inches long, separated by approximately one inch. ...