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New Jersey Division of Youth and Family Services v. M.F. and A.R


August 3, 2012


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-311-10.

Per curiam.



Argued May 23, 2012

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 of J.R.*fn2

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 A.R. as to the delivery physician. She alleged that J.R. had a "scratch on his face" when he was brought to her for the first time after his birth.

In response to information provided by a Division caseworker that M.F. had failed to disclose "something she felt was important," Caicedo re-interviewed M.F., A.R., and D.F. the following day on April 1, 2010. According to Caicedo, M.F. told him during this second interview about "one incident" that occurred while she was "taking a shower." She had left J.R. in the crib or basinet, and "she had left [D.F.] alone with [J.R.]." D.F. "ultimately told [M.F.] that she had grabbed [J.R.]'s leg and twisted it." D.F. confirmed her mother's account of this event to Caicedo, who described what the child told him in court:

[T]here was a time when her mother was taking a shower and that her little brother, [J.R.], was in the crib and that he was crying and he had gotten his foot stuck in between the bars of the crib and that he was struggling to free it, so she put her hand in and pulled his leg to remove it from the crib bars.

M.F. and A.R. also told Caicedo that "they tried to keep [D.F.] away from [J.R.] because they felt . . . that [D.F.] played too rough."

On April 5, 2010, the Division filed an order to show cause and verified complaint seeking custody of J.R. and D.F., and asking the court to appoint a law guardian for the children. D.F. and J.R. were placed with a foster mother, E.L. At the fact-finding hearing, E.L. testified as to conversations she had with D.F., while D.F. was in her care, concerning how J.R. was injured.

The first conversation occurred a "few days" after D.F. arrived. D.F. approached E.L. and told her that "[M.F.] was holding [J.R.] and [A.R.] had come in . . . and that he had been drinking or he was drunk." A.R. wanted to hold J.R., but M.F. "didn't want to give [the boy] . . . to him." A.R. "went and grabbed [J.R.] and took [him] away." The next version came the "next day or a couple of days later." D.F. told E.L. that J.R. was injured when A.R. "was in the house with [J.R.]. [A.R.] laid [J.R.] down on the floor and -- and grabbed -- held him." In yet another version, D.F. told E.L. that A.R. "grabbed [J.R.], pulling him and turned him over."

According to E.L., D.F.'s most detailed account of events concerning her infant half-brother's injuries came one night in a seemingly benign setting. They were both watching a children's movie that E.L. described as having religious overtones. The "bad girl" in the movie went to hell, while the "good girl" stayed with God. After the movie ended, D.F. started to cry and told E.L. that she was afraid of going to hell "because of having told lies because she was the one who did that to her little brother." In response to counsel's request to explain in greater details what D.F. actually told her, E.L. testified as follows:

She said this - - I [D.F.] was sitting, eating something at the table. My mother went into the bathroom, my little brother was asleep, alone in the . . . room. I got up and went there because I wanted to play with my little brother. And then I went and . . . grabbed him and pulled him by the legs, the little legs. My little brother stared crying and my mother yells from the bathroom, [D.F.] what are you doing? I got scared, I started running and then I felt like something here, over here [indicating her right elbow] on the side that it was my little brother's. And I [E.L.] asked her what is that - - that hit you and she [D.F.] answered I think it was a little leg. And I said what do you mean that there were the little legs? No, I thought that the leg was inside when I ran past, inside the crib. So . . . I [D.F.] got nervous and the next morning my little brother had a swollen and bruised leg. I got scared, I went to the bathroom and locked myself in. . . .

E.L. testified that in the year thereafter, D.F. recounted and reaffirmed on numerous occasions this version or explanation of how J.R. was injured. E.L. also testified that during the time she had custody of the children in September or October 2010, she observed D.F. behave in an unsafe manner towards J.R. Specifically, while she was in the kitchen preparing milk for J.R., she looked back into the living room and saw D.F. put "a big cushion . . . on top of [J.R.'s] face, to cover it." E.L. testified to feeling "scared" and "nervous;" she yelled at D.F. to stop her, and reported the incident to the Division caseworker.

When asked if she had witnessed D.F. "getting violent in any way" during the time the child was living with her in foster care, E.L. responded: "Oh yes, oh yes, many times." According to E.L., D.F. was "always hitting" E.L.'s two-year old granddaughter, causing bruises or "bumps" on the head of the child. E.L. also witnessed D.F. strike E.L.'s nephew, and make reference to putting poison on J.R.'s hand.


Dr. Paulett Diah, a pediatrician specializing on cases of abuse, conducted a medical evaluation of J.R. when the child was six weeks old. She categorized the fractures as "non-accidental trauma especially in a non-ambulating infant." As to the biomechanical forces involved in causing J.R.'s injuries, Dr. Diah opined that the type of fractures suffered by J.R. could occur "from acceleration and deceleration type of motions[,] such as shaking or from traction[,] which [involves] pulling and twisting, so tractional and contortion types of forces." Dr. Diah held true to this opinion despite rigorous cross-examination on the subject.

After ruling out "genetic or metabolic processes that may [have been] occurring within [J.R.'s] bones to predispose him to easy fracturing," Dr. Diah concluded that the injuries suffered by J.R. were secondary to child abuse. The "classic metaphyseal lesions are not seen in accidental circumstances or during child care activities." When asked on cross-examination to opine as to the size and strength of an individual capable of inflicting such injuries on an infant, Dr. Diah responded: "[I]f the other individual was of a relatively larger size compared to [J.R.] they may or may not be able to generate the necessary forces that are needed to create that type of injury." Dr. Diah also stated that "[i]t might be possible" for a "[a]n average six to eight year old female" to have the strength to cause the injuries J.R. suffered.

Dr. David Walor, M.D., an expert in pediatric radiology, authored a report for the Division after reviewing the X-rays taken of J.R.'s injuries. Dr. Walor described the "fractures of the distal tibia and fibula," as "classic metaphyseal lesions," normally caused "from a shearing injury." Dr. Walor opined that the injury was "older than at least two or three days" because he saw "evidence of healing."

Dr. Walor opined that "[t]his fracture occurs with a shaking injury." When asked to describe more specifically the type of shaking involved, Dr. Walor responded that "the leg itself has to shake for the fracture to occur;" one could "grab any part of the body and shake the child; as long as the leg is swinging freely[,] the fracture can occur." Dr. Walor testified that "with respect to the age and mechanism of injury," the fracture observed in the right tibia was the same as the left tibia and fibula. He did not see any abnormalities on the C.T. scans or the X-rays; all J.R.'s fractures had healed.

On cross-examination, Dr. Walor testified that to cause the type of fractures suffered by J.R., there "has to be fairly violent shaking" and that "there has to be a lot of energy at the end of the bone as it's going back and forth to cause the fracture." When asked who, in terms of age, could be capable of causing such an injury, Dr. Walor responded: "I think a teenager or an adult would be capable, maybe a large child [of] 9, 10, [or] 11 [years old]." Dr. Walor testified that this type of injury is not usually caused by someone "grabbing the child's legs and twisting." In fact, Dr. Walor testified that he was "not aware" of the possibility that a "twisting action to the leg" could cause a classic metaphyseal lesion.

When asked specifically whether the fractures could have been caused by someone "twist[ing] free" J.R.'s leg from his crib railing, Dr. Walor indicated that he did not believe "that mechanism of injury would cause these fractures." Dr. Walor also ruled out "dragg[ing] along the ground" as a probable explanation for how these injuries occurred. In his opinion, it was not possible for J.R.'s fractures to have occurred "from normal caretaking." Although he was not completely certain, Dr. Walor opined that both fractures "occurred around the same time."

According to Dr. Walor, the two fractures at issue here were "suggestive of . . . battered child syndrome," not of "shaken baby syndrome." This was so because other injuries such as brain swelling, bleeding in the brain, bleeding in one or both of the retinas, and visible bruising or abrasions were not present. In fact, other than the two fractures described here at length, Dr. Walor did not "see anything at all in [J.R.] which indicated [that he] was being neglected or abused."

Defendants also called D.F.'s first grade teacher to testify about a conversation she had with D.F. concerning J.R.'s injuries. The teacher testified that sometime in March 2010 D.F. told her that her baby brother had a "broken foot." D.F. also told her teacher that "she had pulled [J.R.] by the feet while [M.F.] was in the bathroom taking a shower." D.F. said that she "didn't mean to do anything" and that she "[didn't] know if she hurt [J.R.]."

The court overruled the Division's objection on hearsay grounds and permitted the teacher to testify concerning D.F.'s comportment and general behavior with her peers. The teacher described D.F. as a "hyper child" with "behavior problems." She had to be "totally on top of" D.F., "reminding her to keep her hands to herself" because "she liked to hurt the other children." D.F. had been sent to the school social worker for striking and pushing other children.

Against this evidence, the trial judge found it "more likely than not that [M.F. and A.R.] did not inflict the harm" and that D.F. "may well have been responsible for the injuries to [J.R.]." The court also found that it was "definitely more likely than not" that M.F. and A.R. allowed harm to come to [J.R.] for not properly supervising [him] and allowing the six-year old [D.F.,] who turns out to be I'm afraid a disturbed child by all of the testimony that we've had. They allowed [J.R.] . . . inadvertently, either by going into the bathroom or doing the laundry or any such thing and left [D.F.] alone with [J.R.,] which should never have happened under any circumstances.

The court found that defendants had to have known of D.F.'s proclivity for aggression. Defendants' failure to supervise this child allowed her to injure her infant brother. The court found that this behavior by defendants "[fell] well under the statute of neglect and [fell] well under the statute with cruelty."


Following this ruling, the Division informed the court that its permanency plan was to seek the termination of defendants' parental rights over both children, and to thereafter seek adoption. The Division argued that no services were adequate to keep the children safe on a permanent basis. The trial court questioned the Division's position citing the availability of twenty-four hour homemaker services and counseling services, and expressed the "hope that the parents in the future could be trusted to make sure that [D.F.] would not ever be alone with [J.R.] without their supervision."

The Law Guardian for J.R. and D.F. argued against the Division's position. Defendants also opposed the Division's plan and requested that "overnight visits begin immediately." The trial court rejected the Division's plan, finding that although permanency was of "paramount importance," removing J.R. and D.F. "forever from the care and custody of their biological parents" was not the "appropriate road to take."

The court ordered the Division to have psychological evaluations performed on both parents, directed defendants to start parenting skills classes "immediately," including parenting skill classes specifically including D.F. The court held that the termination of parental rights "at this stage of the case" would be "unfair to the children" because they were "entitled to have the love and the care of their biological parents if that is possible."

The court noted that defendants had diligently appeared at all of the proceedings in this case. In this capacity, the trial judge emphasized that she had had the opportunity "to watch [M.F. and A.R.] as all of [the] testimony [was given] and particularly the mother who has shown a great deal of sorrow and a great deal of passion during these proceedings that [the trial judge] think[s] is genuine."

Dr. Sonia Oquendo performed a psychiatric evaluation of D.F. on March 21, 2011. Dr. Oquendo described D.F. as an "inattentive, hyperactive and impulsive" child. She had been "aggressive" toward her infant half-brother J.R., including "trying to hurt [him] by attempting to suffocate him on at least two occasions." Dr. Oquendo noted that D.F. had also been "aggressive to a three-year-old grandchild of her foster mother and she takes away toys and purposefully trips the younger children with the intention of making them fall and get hurt." D.F. was also "known to compulsively lie and scratch[] other children with her nails and hurt[] herself by poking pencils in her thighs."

Dr. Oquendo opined, within a reasonable degree of medical certainty, that "many of [D.F.]'s symptoms and aggressive behaviors are directly related to the multiple traumatic events of her young life, including unstable housing, multiple caretakers, separation from mother and then grandmother and difficulty adjusting to the birth of a newborn sibling." Dr. Oquendo found that D.F. had made "appropriate attachment to both her mother and her foster mother and that reunification with her biological family should be the ultimate goal." Dr. Oquendo recommended that D.F. enter individual therapy, preferably play therapy, in order to help her with her aggressive behavior and sibling rivalry issues until she is able to learn better adaptive coping mechanisms in order to express her anger. Once therapy is in place[,] it should be left up to the therapist to provide regular reports and advise about the time when reunification should be considered. Her parents should be attending parenting classes . . . and should follow all DYFS recommendations while [D.F.] must be constantly supervised to prevent her from hurting any children.

As directed by the trial court, M.F. submitted to a psychological evaluation performed by Luisa Contreras, Ed.D., to assist the court in determining whether reunification with her children was advisable. According to Dr. Contreras, although M.F. was initially reticent about discussing the details of how her infant son had been injured, she eventually became more trusting of the evaluation process. Dr. Contreras described M.F. as emotional, although she "made great efforts to appear composed." Despite this, Dr. Contreras found that she answered all the questions she posed to her forthrightly and truthfully. Based on this evaluation, Dr. Contreras concluded her report by noting:

By all accounts . . . there are no indications that the children are at risk for abuse or neglect from [M.F.] herself. I believe that [J.R.]'s getting hurt was at the time beyond [M.F.'s] control. There is nothing to indicate that [M.F.] is an abusive or neglectful mother. In fact, her role as a mother to her children is extremely important to her at this stage of her life. It is clear that the fact that the children were taken away has been devastating to her and she struggles to maintain stability in her life.

Dr. Contreras expressed concern, however, as to "whether [J.R.] will be safe with [D.F.] in her mother's home." Although Dr. Contreras acknowledged that she had not met with D.F., based on reports she had reviewed, Dr. Contreras believed D.F. suffered from "serious behavior disturbances and emotional dysregulation."*fn4 She also feared that M.F. "may not fully understand her daughter's problems." Dr. Contreras thus recommended that M.F. receive individual therapy to address the guilt she feels from her failure to protect J.R. from D.F.'s aggression; family therapy through which all of the members of the family can interact in a therapeutic environment; and individual therapy for D.F., whom Dr. Contreras believed is the main cause of this family's dysfunction.

Dr. Contreras's psychological evaluation of A.R. occurred approximately one month after she completed her report on M.F. She found A.R. "candid in his account of events," answering her questions with "little questioning or prodding." As reported by Dr. Contreras, A.R. viewed himself and his family as the victims of an "unjust" system. A.R. was particularly upset at having missed "the first year of his son's life." After reviewing the records made available to her, Dr. Contreras concluded that A.R. did not present a risk to his children, and was in fact "a good and responsible parent." As was the case with M.F., Dr. Contreras recommended that A.R. participate in family therapy. She also suggested that A.R. and M.F. participate in couple's therapy as a means of "sorting out their feelings as stepparents and to agree on a plan of action around each of their children."

At the conclusion of these proceedings, the trial court issued a permanency order rejecting the Division's plan to terminate defendants' parental rights as a precursor to adoption. The court emphasized that both of the experts who testified for the Division had recommended reunification. Toward that end, the court ordered the Division to increase overnight visits, and "after 30 days[,] if the Division is satisfied, [J.R.] should be reunified with the parents with homemakers present in the home."

The Division thereafter filed this appeal, arguing that the trial court erred in finding that M.F. and A.R. established that it was more likely than not that J.R.'s injuries were caused by his half-sister D.F. Pursuant to Rule 2:6-11(f), by letter dated July 5, 2012, the Division informed this court that the Family Part had issued an order on July 2, 2012, transferring legal and physical custody of D.F. to her mother M.F., thus finally reuniting the family.


We start our analysis by reaffirming deeply ingrained principles of our appellate jurisprudence. A party may challenge only the propriety of the judgment entered by the trial court, not the reasoning underlying the court's decision. Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001); Heffner v. Jacobson, 100 N.J. 550, 553 (1985); Hughes v. Eisner, 8 N.J. 228, 229 (1951); Price v. Hudson Heights Dev., LLC., 417 N.J. Super. 462, 467 (App. Div. 2011); Arons v. N.J. Network, 342 N.J. Super. 168, 181 (App. Div.), certif. denied, 170 N.J. 388 (2001).

In this appeal, the Division does not challenge the Family Part's ultimate determination that defendants A.R. and M.F. abused their infant son J.R., as that charge has been defined by the Legislature in N.J.S.A. 9:6-1. The Division instead takes issue with the court's reasoning that the abuse and neglect occurred when defendants failed to properly supervise D.F. and failed to protect J.R. from his half-sister's aggressive tendencies. The Division urges us to accept this legal challenge on the grounds that the court's reasoning is predicated upon a misapprehension of the evidence. Most importantly, the Division maintains that if the court's reasoning is left uncorrected by us, it will leave J.R. exposed to his parents' malevolence because the Division established that either M.F., A.R., or both, directly caused their infant son's injuries.

In the course of oral argument, the Division posed the following hypothetical set of facts to us in support of its argument: the Division brings a case against a father alleging sexual abuse of his minor daughter; the trial court finds only physical abuse, and orders the parent and child reunited conditioned upon the father receiving parenting skills training and anger management therapy. Despite having prevailed on the generic charge of child abuse under N.J.S.A. 9:6-1, the Division argues that this hypothetical illustrates the need to recognize its right to seek appellate review of the underlying decision because the welfare of the child is at stake.

Applying this principle to the salient facts here, the Division argues that it must be given the right to challenge the trial court's reasoning because, if the parents actually caused J.R.'s injuries, returning J.R. and D.F. to defendants' custody would leave them at risk for further harm. We are persuaded that the Division's argument is consistent with the judiciary's primary responsibility to act in the best interest of the children that come under its jurisdiction. See Fawzy v. Fawzy, 199 N.J. 456, 474-75 (2009) (imposing an obligation upon the State under the doctrine of parens patriae "to intervene where it is necessary to prevent harm to a child."). Thus, under these narrow circumstances, we opt to deviate from the general principles limiting appellate review to the legal soundness of the judgment of the court, and will review the underlying reasoning support it.

Toward that end, we now determine whether there was sufficient credible evidence in the record to support the court's factual findings. State v. Locurto, 157 N.J. 463, 471 (1999). We embark upon this task mindful that the credibility of witnesses' testimony is always an issue for the factfinder to determine. Cesare v. Cesare, 154 N.J. 394, 412 (1998) ("Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" (citation omitted)).

Pursuant to N.J.S.A. 9:6-1, a parent may be guilty of cruelty to a child if that parent commits "any willful act of omission or commission whereby unnecessary pain and suffering, whether mental or physical, is caused or permitted to be inflicted on a child"; and a parent may be guilty of neglect of a child for a "failure to do or permit to be done any act necessary for the child's physical or moral well-being." Pursuant to N.J.S.A. 9:6-8.46(b), in a factfinding hearing, "(1) any determination that the child is an abused or neglected child must be based on a preponderance of the evidence and (2) only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(a)(2) provides:

[P]roof of injuries sustained by a child . . . of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or guardian shall be prima facie evidence that a child of, or who is the responsibility of such person is an abused or neglected child.

Citing In the Matter of D.T., 229 N.J. Super. 509 (App. Div. 1988), the Division argues that after it established a prima facie case for neglect or abuse pursuant to N.J.S.A. 9:6-8.46(a)(2), the burden shifted to M.F. and A.R. to disprove that they caused J.R.'s injuries. According to the Division, the trial court erred in finding that M.F. and A.R. met their burden by presenting evidence that D.F. was responsible for J.R.'s injuries. The Division asserts: (1) that the unrefuted medical evidence proves that D.F. could not have caused J.R.'s injuries; (2) evidence of D.F.'s prior bad acts should have been excluded as inadmissible; and (3) the trial court's conclusion that D.F. caused J.R.'s injuries was against the weight of the evidence.

We are not persuaded by these arguments. As a starting point, the Division mischaracterized the testimony of Drs. Walor and Diah. Dr. Walor opined that J.R.'s injuries were the result of being shaken because he had "never seen any other mechanism for the fracture explained beyond shaking." He testified that this type of injury is not usually caused by someone "grabbing the child's legs and twisting" because those forces usually cause "a different type of fracture." Dr. Walor acknowledged, however, that a "large child" could have the strength necessary to cause the type of injuries suffered by J.R.

Similarly, Dr. Diah's testimony supports the conclusion that D.F. caused J.R.'s injuries. On two separate occasions, D.F. told the responsible adults around her (first her teacher, then her foster mother E.L.) that she "pulled" J.R.'s legs and "twisted" them while M.F. was in the shower. The trial judge was free to find these witnesses' testimony credible. The court was entitled to find that this testimony offered a plausible explanation of how J.R. was injured and who was responsible for the injury. Specifically, the court was entitled to find that D.F. injured her infant brother by pulling and twisting his legs.

Finally, the Division argues that the court committed reversible error by permitting defendants to offer evidence of D.F.'s prior bad acts to suggest that she was responsible for J.R.'s injuries, in violation of N.J.R.E. 404(b). The Division specifically objects to the testimony of D.F.'s teacher and foster mother because "[t]his testimony was elicited to prove that, because [D.F.] behaved in a particular manner on other occasions, she caused the injuries to her half-brother." The Law Guardian who represented D.F. did not object on her behalf.

In overruling the Division's objection, the trial court determined that the testimony's probative value outweighed any prejudicial effect to the witness. N.J.R.E. 403. We review the court's exercise of its discretionary authority in the area of evidential rulings under the "manifest denial of justice" standard. Bitsko v. Main Pharmacy, Inc., 289 N.J. Super. 267, 284 (App. Div. 1996). Under this standard of review, we discern no basis to interfere with the court's ruling.

We conclude by noting that since this appeal was argued, the family has been reunited. Because the court ordered reunification, the Division continues to oversee the family's progress and remains at hand to quickly intervene if such action becomes warranted. By virtue of its continuing involvement, the Family Part has given this family an opportunity to remain united while providing the proper monitoring to ensure the safety of the children involved. We discern no legal basis to interfere with such a result.


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