On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FN-13-213-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 16, 2012
Before Judges Axelrad and Ostrer.
Defendant J.F. (Jack)*fn1 appeals from the court's March 7, 2011 final order, following a fact-finding hearing, determining that he abused or neglected his three-month old son, J.F. (Joey). Jack and F.P. (Felicia), Joey's mother, had taken Joey to the emergency room on May 6, 2010 after Felicia noticed a lump on Joey's collarbone, and heard a popping sound in his back. The doctor determined Joey had a broken clavicle, which was estimated to be ten days old, and five fractured posterior ribs, all of which appeared to have been fractured at the same time. Based on the evident healing, the doctor estimated the rib fractures were between two and six weeks old. According to the doctor, the fractures were not the result of medical causes, such as a genetic weak-bone condition. Rather, they were caused by outside forces. After trial, the court determined that Jack caused the fractures by roughly handling Joey.
Jack argues the court erred by shifting the burden of persuasion to him; the evidence did not support the court's finding; and the court's order violates public policy. We disagree and affirm.
Who inflicted Joey's injuries was the key issue in the three-day fact-finding hearing held before Judge Terence P. Flynn between September and December 2010. The Division of Youth and Family Services (DYFS) called four witnesses: DYFS supervisor Ava Sharp; Dr. Steven Kairys, who described Joey's injuries and opined how they were likely caused; a detective who participated in interviewing Felicia; and a detective who took part in interviewing Jack. Among the various exhibits DYFS introduced into evidence were the video-recorded custodial interviews of Jack and Felicia. Neither Jack nor Felicia testified at the hearing or called any witnesses. Felicia was permitted to introduce into evidence various medical records of Joey.
In summary, Jack admitted in his recorded interview that he held Joey a few times by grasping him around his chest, causing Joey to cry in discomfort until he held Joey in a different manner; he often removed the boy from his car seat by simply grabbing the front of his clothing; both Felicia and her mother complained that Jack handled the infant too roughly; and Jack eventually changed the way he handled his son.
Joey was a small and fragile child. He was born on February 11, 2010 by caesarian section at thirty-seven weeks gestation, weighing four pounds, six ounces. Joey remained in the hospital until February 20, 2011 because of his low weight and difficulty feeding. After discharge, Joey lived with Felicia and Jack, in Felicia's mother's house.
It was a stressful arrangement. Also living in the house were Felicia's twelve-year-old brother, ten-year-old sister, and aunt. The mother, father and child shared a bedroom, along with their young dog. Jack and Felicia had money problems - they were both unemployed after Joey's birth. Their inability to contribute to living expenses, and the quality of their housekeeping, were sore points with Felicia's mother. Jack and Felicia both claimed Joey was sleeping through the night by April 2010, but he did not nap during the day.
Despite numerous medical visits, many of which occurred after the suspected date of Joey's rib fractures, no medical provider identified Joey's fractures until the parents brought Joey to the hospital on May 6, 2010. Jack and Felicia dutifully took Joey to numerous appointments to address his reflux, chronic gas, and failure to gain sufficient weight. He was deemed medically fragile and classified as a "failure to thrive" baby. His formula was changed frequently due to digestive and feeding issues.
In early April 2010, Jack and Felicia brought Joey to the pediatrician with a condition that was diagnosed as an umbilical hernia. Joey was referred to a pediatric surgeon, Dr. Saad, who examined Joey on April 6. Dr. Saad advised the parents that if the hernia became incarcerated, urgent surgery would be recommended; but if it did not, he recommended monitoring and reevaluation after a year.
The hernia remained problematic. Joey was taken to the hospital emergency room on April 16 and then examined by Dr. Saad in his office. The hernia was manually reduced, but the pediatric surgeon indicated that the hernia had become incarcerated, requiring surgery, which was scheduled for April 26. Dr. Saad noted that aside from Joey's hernia, his "[o]ther physical examination is essentially normal." Joey went to the emergency room again on April 20, 2010 because of the hernia. X-rays were taken of Joey's abdominal area during both ER visits, but they did not depict his ribs or collarbone. On April 26, 2010 Joey underwent surgery at Jersey Shore Medical Center to repair the hernia under general anesthesia and was discharged the same day.
In addition to his visits related to the hernia, Joey visited his pediatrician on March 24, and on April 1, 12, and 21. He was also taken to the Community Medical Center on April 14 for a bowel problem.
In late April, Felicia's mother confronted Jack and Felicia over Jack's treatment of the dog. The confrontation was heated. Jack admitted he was intemperate and threatening. At one point, he told Felicia's mother that he could get rid of her with a single phone call. On April 25, Jack and Felicia moved out, finding room at Jack's parents. On May 6, 2010, they moved again, into their own apartment in Asbury Park. The previous month, Jack had passed a licensing exam to be a certified nursing assistant and had begun working at an assisted living and nursing home facility about two weeks before Joey's surgery. He started with a training shift of 7:00 a.m. to 3:00 p.m., but transitioned to a 3:00 p.m. to 11:00 p.m. shift.
The evidence also indicated that while other family members, such as Felicia's aunt or mother, sometimes cared for Joey, they did so with others present. However, Joey was often alone with Jack, when Felicia was out on errands or during the few days she tried to return to work; and the infant was often alone with Felicia, particularly after Jack returned to work in April. Joey was also in the care of medical providers during certain medical procedures.
On May 6, 2010, Joey had been fussy, according to Felicia. During the afternoon, she heard and felt a "pop" on Joey's side, which she attributed to gas. At about 9:30 that evening, Joey was crying and Felicia noticed a bump on his collar bone and that his sides were "uneven." She brought her observations to Jack's attention and they decided to take the child ...