December 18, 2009
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF: K.M., J.G. AND N.S., MINORS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-191-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 1, 2009
Before Judges Payne, Miniman and Waugh.
S.M., the mother of three boys, K.M., J.G. and N.S.,*fn1 appeals from a order of June 12, 2006, memorializing the finding of a Family Part judge that the Division of Youth and Family Services (DYFS) had proven by clear and convincing evidence that, in or around October 4, 2005, S.M. had abused her son, K.M. (fictitiously, Kenny). S.M. appeals as well from an order of September 26, 2007, effective nunc pro tunc on December 1, 2006, denying S.M.'s motion for reconsideration on the grounds that the motion was moot, the protective services litigation having been dismissed by DYFS on September 18, 2006.
A fact-finding hearing was conducted on May 30, 2006 and June 2, 2006, at which DYFS caseworker Sasha Scuderi and Kenny's pediatrician, James Wapshare, M.D., testified. The record discloses that, at the time of the alleged abuse, S.M. and her husband, J.M., were undergoing a contentious divorce. On October 6, 2005, J.M. contacted Child Protective Service worker Monique Hart to report that when he had picked up Kenny for a visit on October 5, he noticed that Kenny had several yellowish bruises on his abdomen and back. J.M. reported that, when questioned, S.M. had stated that the bruises were sustained at Kenny's daycare facility, Primetime Early Learning Center. J.M. reported further that, when similarly questioned, Kenny, who was two and one-half years of age at the time, allegedly stated first that his mother shook him, then he stated that Ashley shoved him, then that Morgan hit him, and then that a squirrel did it. J.M. told the worker that he had gone to the daycare center to ask about Kenny's bruises and was told that he had not sustained any recent injuries and that there were no injury reports for the child. The intake report noted that the family had been the subject of three former referrals, but that none was substantiated.*fn2
The matter was referred to a local DYFS District Office for investigation, where it was assigned to Scuderi who commenced her investigation by visiting Kenny's daycare facility. There, Scuderi met first with its director, who noted that an incident report of October 4, 2005, stated that Kenny had been pushed by another child and had fallen, hitting his head. Scuderi then met with a daycare worker who acknowledged that Kenny "had a mark around his torso" that she did not believe was a result of something that occurred at school. The worker described Kenny and his almost-six-year-old brother, J.G., as "clean, happy and typical." The worker stated that "[t]here were no prior abuse or neglect concerns."
Scuderi additionally spoke to Kenny's teacher, Lauren Fechtmann, and reported the following:
Ms. Fechtmann advised that on 10/4/2005 she became concerned when [S.M.] came into the center and said "[Kenny] has bruises on him and he came home from school with bruises and marks." "You need to be careful because my ex will make problems." . . . On 10/4/2005 at 4:00 PM during potty time the teacher asked the child why he had bruises on his side and he stated "mommy gave them to me." [Kenny] has reported to the teacher that his mommy holds him tightly. The worker [Scuderi] was also advised that the child disclosed to another teacher at the center when asked how he got the bruises, that his mommy did it.
The bruises were not reported by the daycare center to DYFS, as required by N.J.S.A. 9:6-8.10 when "reasonable cause [exists] to believe that a child has been subjected to child abuse." It is not clear from the record whether the center believed that abuse had occurred and simply failed to report it or whether it did not regard the bruising to have been caused by abuse. DYFS was first informed of the matter two days later by Kenny's father, who had received the telephone number for the Child Protective Service from the daycare center.
Scuderi then interviewed Kenny's brother, J.G., who allegedly reported that when he gets into trouble, he gets a "hard spanking on the butt," that his mother makes him put green liquid soap in his mouth, that both his mother and his mother's boyfriend hit him, and that his mother grabs him by the neck and squeezes hard. As a final matter, Scuderi attempted to interview Kenny. However, he had just awakened from a nap and did not respond to her questions. Upon examination, Scuderi noted one yellowish-green, dime-sized bruise, located on the right side of Kenny's abdomen above his waist. She also noted two yellowish-green bruises, one inch by one-half inch in size, on the left side of Kenny's back. Scuderi was permitted to testify at trial that the bruises were "aging." Although she was unable to determine exactly when they occurred, Scuderi opined that they had been inflicted within a week of October 6. She was additionally permitted to testify that the bruise on Kenny's abdomen was consistent with a thumb imprint and that the two bruises on Kenny's back were consistent with the imprint of fingers.
Scuderi did not testify to the severity of the bruising, she did not photograph the bruises, and she did not refer Kenny to a physician for examination or treatment. Scuderi did not inquire at the daycare facility whether either Morgan or Ashley were enrolled there or whether either had recently hit or shoved Kenny. Further, Scuderi did not obtain any additional information regarding the circumstances of the incident on October 4 that had been the subject of the daycare center report, and thus did not know the identity of the child who had pushed Kenny, the manner in which the pushing had occurred, or whether the bruising could have been incurred at that time.
After leaving the daycare center, at approximately 6:30 p.m., Scuderi went to the home of Kenny's mother, S.M., and her boyfriend. S.M. was initially reluctant to speak with Scuderi and engaged in a lengthy telephone consultation with her attorney. However, upon the advice of her boyfriend, S.M. consented to an interview between the oldest child, nine-year-old N.S., and Scuderi. N.S. reported that when he gets in trouble, his mother hits him hard with an open hand. N.S. could not recall when he had last been hit in this fashion. He denied the use of soap as punishment.
In a subsequent conversation between S.M. and Scuderi, S.M. stated that her husband's report of abuse was likely retaliation for her recent service on him of court papers. After denying that Kenny would tell his father that the bruising had been inflicted by his mother, S.M. sought to confirm that fact by questioning Kenny. According to Scuderi, the following then took place: the child was standing in the doorway to the room and [S.M.] got down to his level and asked him "where did you get those from?" [Kenny] pointed at [S.M.] She then said "no didn't daddy give them to you?" The child then said "no mom you did it."
Scuderi then asked S.M. if the bruising was unintentionally inflicted when S.M. was taking Kenny out of the tub, but she denied that possibility, stating that the bruises had been inflicted in school and showing Scuderi the October 4 incident report. S.M. also stated that she had been advised by a mental health counselor to use soap as an alternative form of behavioral therapy on J.G. Scuderi advised against its use as potentially harmful to the child.
Scuderi testified that, at the conclusion of the visit, both S.M. and her boyfriend signed a case plan in which they agreed to refrain from corporal punishment and agreed to attend parenting classes. The record indicates that, as of November 28, 2005, neither had enrolled in classes. The record also reflects S.M.'s prolonged refusal to sign medical release forms - a matter that was resolved after S.M.'s trial counsel commenced representation in January 2006. In a report dated December 5, 2005, Scuderi stated that physical abuse was substantiated.*fn3
In a home visit on December 15, 2005, S.M. stated that she had determined that the marks seen on Kenny had come from the rivets on his jeans, and as a consequence, she no longer dressed him in such clothes.
Scuderi testified that, on December 20, 2005, an order to show cause and verified complaint against S.M., her boyfriend, and the fathers of her three children were filed pursuant to N.J.S.A. 9:5-8.21 and N.J.S.A. 30:4C-12. In its complaint, DYFS sought an order granting it care and supervision of the three children. An order, dated January 26, 2006, granted the relief sought by DYFS and gave physical custody of the boys to S.M. Kenny's father was given unsupervised visitation every Wednesday from 5:00 to 7:30 p.m. and on alternate weekends. Although the DYFS complaint had named all three children, at the fact-finding hearing conducted on May 30 and June 2, 2006, the focus was solely upon S.M.'s alleged abuse of Kenny.
In addition to the testimony of Scuderi, testimony was provided by Kenny's pediatrician, Dr. Wapshire. The doctor disclosed that he had been treating Kenny on a regular basis since his birth and had never observed any sign of abuse. However, he had not examined Kenny at or around October 6, 2005, having seen him last in August of that year. Dr. Wapshire's partner, Dr. Ogario, had treated Kenny on October 14, 2005, for a viral illness. No abuse was noted in the doctor's record of that visit.
Following the conclusion of the hearing, the Family Part judge issued an abbreviated written finding of fact consisting of twenty-two lines of text. In it, the judge noted the existence of "small" bruises, one on Kenny's stomach and two on his back just above his hip that were "greenish yellow indicating injuries suffered several days to a week earlier." The judge noted additionally that Kenny had told his teacher that his mother had caused them, and that the child had made the same accusation directly to his mother while in the presence of the DYFS caseworker. The judge found it significant that S.M. did not follow up with other questions to the child regarding the circumstances of the bruising, she did not state when she had first observed the bruises,*fn4 she had not previously asked Kenny how he had been hurt, and she offered no other plausible cause for Kenny's injuries. The judge noted further that S.M. did not testify at trial "or offer any other testimony or evidence to refute the Division's allegations."*fn5 On this basis, the judge found by clear and convincing evidence that S.M. had abused Kenny, causing him injury, "apparently by holding him roughly about his waist area and shaking him." The judge did not cite to any statutes in rendering his opinion, so even if it is assumed that he found abuse as defined in N.J.S.A. 9:6-8.21c to have occurred, it is unclear upon what provision of that statute the judge rested his decision. The judge cited no precedent in support of his conclusion.
On September 18, 2006, the protective services case was terminated. That action provided the grounds for the Family Part judge's later determination, on September 26, 2007, that S.M. motion for reconsideration was moot.
As we noted previously, the Family Part judge did not refer to the definition of an abused or neglected child in making his findings, or even cite to the relevant statute. We assume that the judge relied upon N.J.S.A. 9:6-8.21c(4), which is the only definition that can potentially apply in this matter, given the sparse factual record. That statute states in relevant part that an abused or neglected child is 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 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.
Impairment as the result of a parent's failure to exercise a "minimum degree of care" has been interpreted to require evidence of conduct that is "grossly or wantonly negligent, but not necessarily intentional." G.S. v. Department of Human Serv's, 157 N.J. 161, 178 (1999). The probability of present or future abuse must be proven by a preponderance of the admissible evidence. N.J.S.A. 9:6-8.46b(1); New Jersey Div. of Youth and Fam. Serv's v. I.Y.A., 400 N.J. Super. 77, 87 (App. Div. 2008); New Jersey Div. of Youth & Fam. Serv's v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005).
On appeal, S.M. argues that the record contains insufficient evidence to support a finding of abuse, and that the Family Part judge incorrectly applied the law to his findings of fact in concluding that abuse had been proven. We agree. "The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." I.Y.A., supra, 400 N.J. Super. at 89 (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). However, deference is not appropriate if the trial judge's findings are "so wide of the mark that the judge was clearly mistaken." Ibid. (quoting New Jersey Div. of Youth & Fam. Serv's v. G.L., 191 N.J. 596, 605 (2007)). We regard such to be the case here.
To meet its burden of proof in this matter, DYFS was required to present prima facie evidence that S.M. had committed an act of abuse upon Kenny. The Family Part judge determined that DYFS had met that burden, and he found further that "apparently" S.M. had held Kenny roughly around the waist area and had shaken him. We find those conclusions to be unsupported by the record. Although that record contains some evidence, consisting of Kenny's statement in Scuderi's presence, that S.M. had caused the bruising observed on Kenny's torso, no competent evidence was presented that would permit a conclusion as to how the bruising had occurred.*fn6
In cases of severe but unexplained injuries occurring while a child is solely in the custody of his parents, N.J.S.A. 9:6-8.46a(2) creates a rebuttable presumption that parental abuse has occurred. The statute provides that in any hearing under Title 9, "proof of injuries sustained by a child or of the condition of a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or guardian shall be prima facie evidence that a child . . . is an abused or neglected child." However, the statutory presumption cannot apply in the present circumstances because, as the parties acknowledged at the fact-finding hearing, bruising can occur under many circumstances and is frequently accidentally induced.
Moreover, there is no evidence in the record to suggest that the bruising found on Kenny's torso was "of such a nature as would ordinarily not be sustained" absent abuse. No photographs were taken, no medical examination or treatment was obtained, and no testimony suggested severity. Rather, the only description of the bruises provided at the fact-finding hearing suggested that the bruises were small in size and that they were fading.
Direct prima facie evidence of abuse is lacking, as well. We recognize in this regard that Kenny's father allegedly informed the intake worker that Kenny had disclosed that he had been shaken by his mother and that this information was set forth on a screening summary form. Although that triple hearsay was, in turn, presented by Scuderi at the fact-finding hearing, we do not find the testimony to have been evidential. N.J.S.A. 9:6-8.46b(2) provides that "only material and relevant evidence may be admitted" at a hearing to determine if abuse and neglect took place. See also New Jersey Div. of Youth & Fam. Serv's v. H.B., 375 N.J. Super. 148, 175 (App. Div. 2005); New Jersey Div. of Youth & Fam. Serv's v. J.Y., 352 N.J. Super. 245, 262 (App. Div. 2002). This evidence did not meet that requirement.
N.J.S.A. 9:6-8.46a(3) permits the introduction of DYFS records into evidence at a fact-finding hearing, despite the hearsay nature of such records. See also R. 5:12-4(d) (permitting DYFS to submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel). However, we have limited admissibility in this context to statements in such records that are prepared contemporaneously and are premised on the writer's first-hand knowledge. Division of Youth & Fam. Serv's v. M.C. III, 405 N.J. Super. 24, 33 (App. Div. 2008), certif. granted, 199 N.J. 515 (2009); I.Y.A., supra, 400 N.J. Super. at 90; In re Guardianship of Cope, 106 N.J. Super. 336, 343 (App. Div. 1969) (reaching the same conclusion in a termination of parental rights context). Our reason for doing so is based upon a recognition that "[r]eports of this type, prepared by the qualified personnel of a state agency charged with the responsibility for overseeing the welfare of children in the State, supply a reasonably high degree of reliability as to the accuracy of the facts contained therein." Id. at 344. We have found to be inadmissible under N.J.S.A. 9:6-8.46(a)(3) statements by a doctor, recorded in a screening summary form, that the doctor had been told by his children-patients that their injuries were caused by abuse. M.C. III, supra, 405 N.J. Super. at 34-37. The statement of Kenny's father recounting Kenny's alleged comment that his mother had caused his bruising by shaking him is similarly inadmissible as lacking any indicia of reliability - particularly in light of the estrangement between the father and mother arising from the impending divorce and related custody issues. The statement by the daycare center teacher that Kenny had told her the bruises had been caused by his mother holding him tightly is similarly inadmissible. Moreover, if admissible, that statement would not establish abuse.
We note in this regard that N.J.S.A. 9:6-8.46a(4) permits the introduction of "previous statements made by the child relating to any allegations of abuse or neglect," if corroborated. We do not construe this statutory provision to permit the use of the triple and double hearsay at issue here. Instead, we limit the introduction of the child's hearsay claims of abuse, as we limited N.J.S.A. 9:6-8.46a(3), to statements by the child of which the DYFS worker or another witness at the hearing has first-hand knowledge. Although we did not explicitly hold thus in M.C. III, such a determination is implicit in our determination that N.J.S.A. 9:6-8.46 did not authorize the admissibility of the screening document at issue that contained similar allegations of children's claims of abuse. Absent this evidence, the record at most,*fn7 discloses that S.M. in some manner - whether by accident or by conduct that was grossly or wantonly negligent - caused bruising of unknown severity to her son Kenny. It does not contain prima facie evidence of abuse. Consequently, dismissal was required pursuant to N.J.S.A. 9:6-8.50c. The purpose of Title 9 is "to provide for the protection of children under 18 years of age who have had serious injury inflicted upon them by other than accidental means." N.J.S.A. 9:6-8.8. Proof satisfying those standards is lacking.
In reaching this conclusion, we are mindful that a "fact-finding hearing is a critical element of the abuse and neglect process," because the court's "determination has a profound impact on the lives of families embroiled in this type of a crisis," I.Y.A., supra, 400 N.J. Super. at 87-88 (quoting J.Y., supra, 352 N.J. Super. at 264-65), and because it serves as "a significant and necessary check on the actions of DYFS." Ibid. (quoting S.S., supra, 372 N.J. Super. at 24). See also Division of Youth & Fam. Serv's v. A.C., 389 N.J. Super. 97, 106 (Ch. Div. 2006). It is thus imperative that such hearings be conducted with due regard to the rules of evidence and proper recognition of guiding legal principles. While no child should be exposed to danger, no parent should be found guilty of abuse upon an inadequate factual record, as occurred here. J.Y., supra, 352 N.J. Super. at 265.
As a final matter, we conclude that the judge was mistaken in finding S.M.'s motion for reconsideration*fn8 to have been moot. Although the protective services litigation had been terminated, S.M. remained subject to the restraints on employment imposed by virtue of her inclusion in the Central Registry pursuant to N.J.S.A. 9:6-8.10(a). See also N.J.S.A. 9:6-8.10a (governing release of records and employment). As to her, the motion had not been mooted by the termination of the litigation.
Reversed. DYFS is directed to remove S.M.'s name from its Central Registry.