On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-203-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 13, 2011 - Decided Before Judges Axelrad and Ostrer.
K.P. appeals from the Family Part's April 28, 2010 order, following a fact-finding hearing, determining that he abused his eight-month-old daughter Kh.P. by purposefully causing a spiral fracture to her humerus (the bone between the shoulder and the elbow) by throwing her to the floor. K.P. also appeals from the court's final order entered December 9, 2010, terminating the litigation and barring K.P.'s contact with the victim until he had undergone therapy and parenting education as recommended in a psychological evaluation provided to the court. We affirm.
The court conducted a fact-finding hearing on March 19 and April 28, 2010, after the Division of Youth and Family Services (DYFS) filed a verified complaint in January 2010 for the care and supervision of Kh.P. and her half-sister, A.T. The complaint named as defendants K.P., T.C. (K.P.'s girlfriend and mother of Kh.P. and A.T.), and B.T. (father of A.T.). According to the evidence at the hearing, K.P. suffered the fracture to her humerus while she was alone in K.P.'s care for less than twenty minutes on November 25, 2009. K.P. and Kh.P. lived in an apartment in Newark with T.C. and A.T., who was two-and-a-half years old.
Late in the afternoon, T.C. left the apartment with A.T. to visit T.C.'s sister, who lived a few houses down the street, to borrow some videos. K.P. testified that before T.C. left the apartment, he had become upset that T.C. placed Kh.P. in a high chair because he had not purchased it. He testified that he insisted that T.C. remove the child from the high chair, which she did. K.P. testified that after T.C. left on the video errand, he nonetheless placed the child back in the high chair without strapping the child in. Less than a minute later, he claimed that he grabbed the child by her right side with his right hand, to lift her out of the high chair. He insisted that he did not grab her by the arm, but was able to grasp the fourteen-and-a-half-pound child by her torso with one hand. Moreover, he insisted that he faced the child as he grasped her on her right side with his right hand; in other words, he claimed he reached across the child as he lifted her out of the chair.
He asserted that after the child's foot caught the tray, and he lost his grip, the child fell to the floor on her side and began to cry. He stated he consoled the child, and ultimately placed her on a mattress on the floor. He claimed that he was unaware that the child had suffered a serious injury. Nonetheless, he decided to seek out T.C. down the street, leaving the eight-month-old child alone in the apartment on the floor mattress.
T.C. met K.P. in front of her sister's house and inquired where the baby was. K.P. answered that the child was in the apartment, but said nothing about a fall or injury. T.C. rushed to the apartment, and found her daughter asleep on the mattress. When she lifted her child, she began to whimper and then, as T.C. examined her daughter, the child's cries of pain alerted T.C. that the child had suffered a serious injury to her right arm.
When K.P. returned to the apartment, T.C. asked him what had happened. K.P. testified at the fact-finding hearing that he told T.C. that he had dropped the baby, but admitted that he did not say anything about attempting to lift her one-handedly out of the high chair. However, according to T.C., K.P. admitted that he threw the baby to the floor and the bed a few times, and then hit her with a pillow. After T.C. spoke to K.P., she called the police for assistance.
T.C. repeated K.P.'s admissions to a responding police officer, and a DYFS investigator, who both testified at the fact-finding hearing. The DYFS investigator testified that T.C. stated that after T.C. asked K.P. what had happened to the child, K.P. initially replied "[I]f you were here, you would know," and then told her, "Maybe I threw her a few times on the bed - on the floor and hit her with a pillow." T.C.'s recitation of K.P.'s admissions was also reflected in the hospital's medical records, admitted in evidence. Defendant was arrested at the apartment and taken into custody.*fn1 At the fact-finding hearing, K.P. denied that he admitted throwing his daughter.
Dr. Raksha Gajarawala, a pediatrician, testified that Kh.P. had suffered a spiral fracture, which usually occurs by twisting or applying torsional force to the bone. In her report, admitted in evidence, she stated that spiral fractures of the humerus are found most frequently in abused children. "The frequency of these fractures in abused children is readily explained: the arms offer a convenient 'handle' to the assailant as the infant is pulled, swung or shaken." She testified that it was unlikely that Kh.P.'s spiral fracture could have occurred by simply falling, or being dropped to the floor, as such an incident would not have provided the necessary twisting or torsional force.
The court also received in evidence a letter written by K.P. in which he set forth his version of the incident. Relevant to the court's ultimate order limiting K.P.'s contact with T.C.'s children, K.P. admitted prior instances of child neglect and domestic violence that were alleged in DYFS's verified complaint for care and supervision filed in January 2010. He admitted that in May 2008, he grabbed T.C. in the course of an argument, in the presence of her young sons (the boys primarily lived with their father). When the boys intervened to try to protect their mother, K.P. admitted he "simply pinned them to the ground" while informing them he did not intend to hurt their mother. He admitted that in June 2008, he left A.T., who was ten months old at the time, unattended in an illegally parked vehicle in New York City while he went into a restaurant to use the restroom. He remained in the restaurant so long that the car was towed, with the child inside, before he returned to the vehicle. The child was found unharmed hours later. He admitted that during an argument over his alleged infidelity in 2009, he pushed T.C. and bit her on her arm. He also admitted to tossing K.P. in the air and on the bed, to make her smile.
In his decision on April 28, 2010, Judge Stephen J. Bernstein found by clear and convincing evidence that K.P. abused Kh.P. N.J.S.A. 9:6-8.21(c)(4). Judge Bernstein found K.P.'s testimony to lack "any credibility." He disbelieved that K.P. picked up the child one-handedly by grasping the child by the side. He credited the testimony that K.P. admitted throwing the child. He also found persuasive Dr. Gajarawala's testimony that the nature of the fracture was consistent with abuse. The court entered a fact-finding order the same day.
In advance of hearing a motion to terminate the case on December 9, 2010, the court and counsel received the results of a psychological evaluation of K.P. that the court ordered in July 2010. Based on a clinical interview and various psychological tests, Andrew P. Brown, III, Ph.D. determined that K.P. was mentally challenged, scoring in the "mentally deficient" range of less than 70 IQ. He found the presence of antisocial behaviors, poor impulse control, aggression, poor insight and a narcissistic personality. He expressed concerns about K.P.'s ability to parent in the future, and recommended that K.P. attend a parenting skills course and participate in individual psychotherapy to acquire insight into the repetitive nature of his antisocial behaviors. He ...