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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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