On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-311-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Graves and Koblitz.
The Division of Youth and Family Services (Division or DYFS) filed a verified complaint and order to show cause against defendants M.F. and A.R., alleging that they had abused and neglected their infant son J.R. The Division also charged defendants with abuse and neglect of M.F.'s biological daughter, D.F., who was then seven years old. Although A.R. is not legally related to D.F., he shared parenting responsibilities for this child with M.F.
After conducting fact-finding hearings on eight non-sequential dates, the Family Part found that, over a period of time, J.R. sustained multiple fractures to his legs caused by non-accidental trauma while in defendants' custody. The court also found that the injuries to J.R. were inflicted by his sister D.F., who, at the time, was six years old and suffering from developmental delays and emotional problems that had been exacerbated by untreated psychiatric issues. The court held defendants legally accountable for their son's injuries, finding that defendants abused and neglected J.R. under N.J.S.A. 9:6-1, by failing to properly supervise D.F. and protect J.R. from his sister's compulsive and physically aggressive behavior.
On June 13, 2011, the court ordered the Division to permit defendants weekend visitation with J.R., supervised by a homemaker, for a period of thirty days. Absent any problems, the court directed the Division to reunify J.R. with his parents at the conclusion of this probationary period. The court denied the Division's application for a stay of the reunification order pending appeal. We denied the Division's motion seeking the same relief from this court.
Despite having prevailed before the Family Part by obtaining a judgment of abuse and neglect against defendants, the Division has appealed to this court seeking review and reversal of that part of the trial court's decision that: (1) found the injuries to J.R. were caused by his half-sister D.F.; and (2) directed the Division to reunite J.R. with his parents. We now affirm the trial court's order directing that J.R. be reunited with his parents and, under the circumstances presented, and mindful of our parens patriae responsibilities, agree to review the trial court's specific rationale for finding that defendants abused and neglected their son A.R. pursuant to N.J.S.A. 9:6-1.
M.F. gave birth to D.F. in the summer of 2003.*fn1
J.R. was born in February 2010; A.R. is the biological father
M.F. and A.R. are the primary caregivers for both children. Approximately five weeks after J.R. was born, M.F. noticed discoloration of the child's lower leg and a swelling of his foot. M.F. treated the apparent injury by applying a mixture of salt water and a balm, a home remedy she learned from her family in Honduras. On March 17, 2010, M.F. and A.R. took J.R. to a previously-scheduled appointment with his pediatrician. Because the swelling had decreased by that time, the pediatrician did not notice any discoloration until it was brought to her attention. Although she did not consider the matter urgent, the pediatrician referred J.R. to Christ Hospital in Jersey City for X-rays.
Despite the lack of urgency, M.F. took J.R. to Christ Hospital the following day on March 18, 2010. The X-rays showed that J.R. had a distal tibia fracture of his right leg. Later that same day, Christ Hospital nurse Sara Vieira contacted the Division to report that J.R. appeared to be an abused or neglected child. Vieira told the Division that J.R. had been brought to the hospital because he had "discoloration" of the leg. Vieira also informed the Division that J.R. "appear[ed] to be well-fed and well taken care of," and that M.F. and J.R. "were well-dressed and clean." The hospital discharged J.R. to his parents with a recommendation that he see an orthopedist on an outpatient basis.
In response to the Christ Hospital referral, Division intake worker Vivian Acosta visited M.F. and A.R. at their home in Union City that same day. Acosta noted in her report that the home was "clean and well-organized," and that J.R. was "clean and dressed appropriately with a splint on his right leg." Acosta interviewed six-year-old D.F. outside defendants' presence. D.F. too appeared "clean and well-dressed." When Acosta asked D.F. who cared for J.R., she pointed to M.F., her mother. D.F. also told Acosta that she has never carried J.R. and is not allowed to do so because J.R. was too small. When asked about J.R.'s injuries, D.F. stated that J.R. had a splint on his leg "because it broke;" she did not know how it happened.
Acosta also interviewed M.F., whom she described as "fully cooperative in answering all of [the] questions." M.F. reiterated that she brought J.R. to the pediatrician when she noticed the discoloration of one of his ankles. She took the child to Christ Hospital for X-rays as ordered by the pediatrician. A.R. arrived at the residence while Acosta was interviewing M.F. He told Acosta that he did not know how J.R. had been injured. During the investigation, both stated that D.F. did not have unsupervised access to J.R.
The Division concluded this preliminary investigation that same day. As a result, the Division placed homemakers at the residence on a twenty-four-hour basis, beginning on March 18, 2010 and ending on March 31, 2010. The homemakers did not report anything negative during this thirteen-day intensive monitoring period. In fact, the homemakers reported that M.F. had good interactions with her children.
M.F. and A.R. informed DYFS of a history of genetic problems in the family that could explain their son's injuries. J.R. was seen on March 24, 2010, by Franklin Desposito, M.D., an expert in genetics, to determine whether the child suffered from osteogenesis imperfecta, a congenital disorder that leaves bones more susceptible to fractures. Based on the tests he performed, Dr. Desposito opined, with an approximate ninety percent degree of medical certainty, that J.R. did not suffer from this genetic disorder.
On March 26, 2010, J.R. was taken to Hackensack University Medical Center for a skeletal survey. On March 31, 2010, J.R. was again taken to Christ Hospital for an orthopedic follow-up to learn the results of the March 26 skeletal survey. The skeletal survey from Hackensack University Medical Center found an additional fracture in J.R.'s other leg.*fn3 This prompted Christ Hospital to make a second referral to the Division concerning J.R.'s safety. As a consequence, the Hospital did not discharge J.R. to his mother's custody.
That same day the Division executed an emergency removal of both J.R. and D.F., taking legal and physical custody of both children, and formally referring the case to the Hudson County Prosecutor's Office for a criminal investigation. Detective William Caicedo of the Hudson County Prosecutor's Office, Special Victim's Unit, interviewed M.F., A.R., and D.F. that same day. Caicedo testified that D.F. was aware that J.R. had injured his leg, but "she wasn't aware how he got [his injury]." Caicedo later testified that D.F. told him "that the doctor did it."
According to Caicedo, M.F. told him that "[s]he didn't have any knowledge as to how [J.R.'s injury] may have occurred." She did not see any problems until "three weeks after [J.R.] was born," and when she "notice[d] swelling on the leg, she applied salt water compressions and that brought the swelling down." A.R. confirmed to Caicedo M.F.'s account of events. A.R. told the detective that "he had no knowledge" of how the injury happened to J.R.; he "became aware of the injury when [M.F.] pointed it out to him."
When pressed by Caicedo for an explanation as to how this could have happened to his son, A.R. "mentioned that there was a time when he came home and . . . he discovered [D.F.] holding [J.R.] . . . and that he pointed it out to [M.F.] and asked her if she had given [D.F.] permission to carry [J.R.]." M.F. told him that she had not given D.F. permission, and both A.R. and M.F. "reprimanded [D.F.] about not carrying [J.R.]." A.R. also repeated his allegations against the delivering doctor, claiming that he may have been "a little too rough." M.F. agreed with ...