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New Jersey Division of Youth and Family Services v. S.R

December 3, 2010

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
S.R., DEFENDANT-APPELLANT, AND P.P. DEFENDANT.
IN THE MATTER OF K.R., A MINOR.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-170-09.

Per curiam.

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 17, 2010 - Decided Before Judges Axelrad, R. B. Coleman, and J. N. Harris.

Appellant S.R. fathered a daughter K.R. in January 2009.

S.R. appeals from an order entered on October 29, 2009, which found that S.R. had abused K.R. by inflicting two fractured ribs on the infant. K.R.'s mother P.P. was found not to have abused the child, and the infant was returned to her custody after a dispositional hearing. Arguing essentially that the Family Part's determination of abuse was against the weight of the evidence and that the court improperly reallocated the burden of proof, S.R. seeks to reverse the Family Part's conclusions. Because we are unable to agree that errors were committed in these proceedings, we affirm.

I.

The Division of Youth and Family Services (DYFS) became involved with S.R. and his daughter on April 23, 2009, after DYFS received a referral from St. Joseph's Hospital, where a pediatrician suspected that K.R. had been physically abused. At the time, S.R. was twenty-three years old and P.P. was nineteen.

Before the birth of their child, S.R. and P.P. lived separately in Paterson, two buildings apart from each other. After K.R.'s birth, S.R. visited with his daughter at the home of the child's mother on multiple occasions. In April 2009, S.R. moved in with P.P. and K.R.

On April 20, 2009, after P.P. had brought K.R. to the family pediatrician for suspicious bruising and bleeding, the then three-month old infant was admitted to St. Joseph's Hospital. Two days later, K.R. was evaluated by Dr. David Kroning, M.D., Chief, Pediatric Emergency Department, and principal of the Child Protection and Safety Center at the hospital. Dr. Kroning conducted a physical examination of K.R. and also reviewed her medical records, which included a previous emergency room visit to St. Joseph's Hospital on February 28, 2009. Those records indicated prior concerns of bruising and rash-like symptoms on the infant. During the physical exam, the doctor found further bruising on the infant's chest.

Dr. Kroning ordered a skeletal survey, and also consulted with Dr. Dennis John Kou, M.D., a hematologist, to rule out any blood disorders that could be causing the bruising. During his review of the skeletal survey, Dr. Kroning consulted with Dr. Robin Frank-Gerzberg, M.D., a radiologist at the hospital, who concluded in her report that there were bi-lateral healing rib fractures present in the child. As a result of these observations and conclusions, DYFS was contacted to report that K.R.'s injuries were likely the result of physical abuse.

As a result of the physical examinations and prior history, DYFS activated an emergency removal of the child pursuant to N.J.S.A. 9:6-8.26 and -8.30 on April 29, 2009. The next day, DYFS filed a Verified Complaint and an Order to Show Cause against both parents, seeking the continued care, custody, and supervision of the minor with DYFS. The Family Part granted this request in an order dated May 1, 2009.

Thereafter, on October 8, 9, and 29, 2009, factfinding hearings were conducted by Judge Miguel A. de la Carrera. Dr. Kroning, two DYFS employees, and the child's parents testified. At the conclusion of the proceedings, Judge de la Carrera rendered an oral opinion in which he found that DYFS had proven child abuse by S.R. only.

Dr. Kroning opined that K.R. suffered rib fractures caused by compressions, specifically by non-accidental trauma and excessive force. Additionally, K.R.'s prior hospital visit in February 2009, due to facial bruising, was also likely caused by trauma, as there was no other possible explanation for such bruising to a four-week old infant since a blood disorder had been ruled out by the hematologist.

At the close of DYFS's presentation of evidence, the parents made a motion to dismiss the matter for failure to establish a prima facie case of abuse or neglect. DYFS argued that N.J.S.A. 9:6-8.46(a)(2) applied, which, based on the evidence, presumes abuse or neglect by the parents. Judge de la Carrera denied the parents' motion, finding that DYFS met its burden that the infant was in the care of S.R. and P.P, "although of course primarily [by P.P.]," and that excessive force had been used on K.R.

As the factfinding process proceeded, S.R. asserted that he only visited K.R. on weekends, but did accompany P.P. to both St. Joseph's Hospital in February 2009 and to Hackensack University Medical Center in March 2009 after another incident of bruising occurred. S.R. claimed that April 19, 2009, was the first time he was ever left alone with his infant daughter, and that after trying to feed her a bottle, she began to vomit blood; S.R. and P.P. then immediately rushed K.R. again to St. Joseph's Hospital where she was examined and then released without incident. S.R. also indicated that after K.R. was injured in April 2009, he and P.P. began to resolve their relationship, and enjoyed a renewed romantic connection.

P.P. also testified, noting that childbirth was difficult despite a cesarean section. Offering additional explanations for K.R.'s bruising, she explained that in February 2009, she took the infant to the pediatrician for vaccinations and ear piercing, and the doctor had to firmly hold K.R.'s face down to keep her from moving. P.P. testified that she was concerned her daughter might have anemia or leukemia, or another blood disorder, so she promptly brought K.R. to Hackensack University Medical Center when a second episode of bruising took place. The infant was scheduled for a follow-up visit, during which it was reportedly very difficult for the nurses to draw blood, which P.P. offered as an explanation for further bruising. P.P. also confirmed S.R.'s account of the evening of April 19, 2009, when K.R. vomited blood after taking her bottle, but emphasized she had never before seen her daughter vomit blood.

On cross-examination, P.P. gave conflicting testimony that, despite S.R.'s claims to the contrary, he was actually a regular visitor with his daughter almost every day, especially in the first ...


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