On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FN-13-0176-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, Alvarez and Skillman.
In this matter, the Law Guardian on behalf of a minor, D.G., Jr., appeals*fn1 a Family Part judgment in a Title Nine proceeding that the child's mother, K.N., did not engage in acts of abuse and neglect. N.J.S.A. 9:6-8.21 to -8.73. We conclude that the conduct constituted abuse and neglect within the meaning of the statute and therefore reverse.
Prior to D.G., Jr.'s birth, the Division of Youth and Family Services (the Division) received one referral regarding K.N. On September 12, 2008, the Monmouth Medical Center (MMC) reported that K.N., then nearly seven months into her pregnancy, admitted to using heroin three months prior to her visit to the clinic and reported that she had been taking methadone for the past three months. The file was closed after the Division confirmed that K.N. was attending the Jersey Shore Addiction Services Methadone Clinic, participating in parenting classes there, receiving prenatal care, and had a family support system.
On December 17, 2008, MMC again contacted the Division. D.G., Jr., had been born the prior day and K.N. acknowledged a history of using twenty bags of heroin daily. D.G., Jr., weighed seven pounds, seven ounces at birth, and once released from the hospital, was cared for by his parents in their home.
On February 4, 2009, MMC called in a referral that D.G., Jr., had gained only a pound since birth, thereby raising concerns that he suffered from "failure to thrive," and had been admitted with a fractured left arm. The parents allegedly noticed the injury three or four days prior, but K.N. claimed to have forgotten that her son's arm was swollen until she brought him in to her doctor's office for an unrelated medical issue.
X-rays revealed that not only was D.G., Jr.'s left radium "badly broken[,]" he had multiple rib fractures in different stages of healing as well as a right clavicle fracture. The emergency room pediatrician informed the Division that it was not possible that D.G., Jr., had been fed four ounces of formula every three hours as the parents claimed, because, if so, he would have acquired baby "pudge" and he had none. The physician believed that the child's condition was only consistent with child abuse. The child remained at the hospital and on February 9, 2009, the Division took D.G., Jr., into protective custody pursuant to N.J.S.A. 9:6-8.28 and 9:6-8.30.
When later interviewed by the Monmouth County Prosecutor's Office about the child's fracture, K.N. said that D.G., Sr., noticed that the baby's left arm looked flimsy and swollen four days before she took him to MMC. She had forgotten about the injury and delayed obtaining medical care because she did not think it was that severe. K.N. admitted that she cared for the child eighty percent of the time and D.G., Sr., cared for him twenty percent of the time, and that for the seven days prior to the hospital visit she and D.G., Sr., were his sole caretakers.
When interviewed, D.G., Sr., said that K.N. usually watched the baby because he worked. He too indicated that he noticed the broken arm on February 1 or 2, 2009.
K.N. and D.G., Sr., were indicted for second-degree child endangering, N.J.S.A. 2C:24-4(a). They ultimately entered guilty pleas to the lesser third-degree offense. On September 24, 2010, K.N. was placed on probation.
The Title Nine proceedings culminated in a fact-finding hearing conducted over several days, from March 2, 2011 to June 30, 2011. The trial judge issued a written opinion finding D.G., Sr., had ...