On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-265-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 27, 2012
Before Judges Alvarez, Nugent and Ostrer.
Defendant S.F appeals from the June 23, 2011 Family Part order finding that she abused or neglected her two-year-old son, K.S., when she accidentally caused a fracture of his right lower leg while pulling him across the back seat of a car. We affirm.
The New Jersey Division of Youth and Family Services*fn1
(the Division) received a referral concerning S.F. and K.S.
on October 20, 2010, when a hospital emergency room pediatrician
reported that K.S. had sustained a spiral fracture of his right tibia.
The Division assigned a caseworker from the special response unit to
investigate the referral. After speaking to the emergency room doctor,
the caseworker interviewed S.F. and other family members, then
implemented a safety plan "with the use of a homemaker."
Two months later, on December 20, 2010, the Division filed a complaint alleging that K.S. had been abused or neglected. Following several proceedings in which the court, among other actions, granted the Division care and supervision of K.S., the court conducted a fact-finding hearing on June 14 and 23, 2011. At the inception of the hearing, in response to the court's question, the Division informed the court that it was proceeding under sub-sections (c)(1) and (2) of the statute that defines "abused or neglected child," N.J.S.A. 9:6-8.21.
During the fact-finding hearing, the Division presented the testimony of the special response worker and a medical expert, and moved into evidence six documentary exhibits, including the reports of its investigation. S.F. testified on her own behalf. The evidence established that on the day K.S. sustained the fracture, S.F. drove to her mother's place of employment and parked her car while waiting for her mother to finish work. S.F.'s adult cousin was seated in the front passenger seat. K.S. and three other children, ages two, three, and four, were seated in the back seat. S.F. put K.S.'s car seat in the trunk so that the children would have more room while they waited. As S.F. and the others continued to wait for S.F.'s mother, K.S. opened the rear driver's side door. S.F. got out of the car and went to the rear door to "sit [K.S.] down," but K.S. ran to the opposite side of the car, behind the passenger seat. S.F. leaned in, reached across the seat, and pulled K.S.'s left leg toward her. She did not yank her son's leg. As she pulled him toward her, "his facial expression changed. That's how [S.F.]knew something happened and he started crying." S.F. "thought [she had] sprung his foot."
S.F. explained that they waited for her mother for approximately one-half hour. During the wait the children were not sitting still, and a couple of times she had to turn around and tell them to quiet down. However, S.F. testified that she was not upset and that she remained calm. When she reached into the back seat and began pulling her son toward her, "he still was smiling, laughing[,] but after he got closer his facial expressions just changed."
K.S. would not let his mother touch his foot. He would not stand up. S.F. knew something was wrong, so she dropped off her mother, cousin, and the other children, then took K.S. to the hospital where he was diagnosed with a spiral fracture of the right tibia.
Dr. Robert Morgan, the Chief Medical Officer for the Department of Children and Families, testified on behalf of the Division as "an expert in pediatrics and child abuse and neglect cases." According to Dr. Morgan, K.S. suffered a non-displaced spiral fracture of the right tibia, the large bone of the lower leg extending from the knee to the ankle. He explained that "non-displaced" means that the bone fractures, but the pieces of the bone do not separate. He further explained that a spiral fracture is "a twisting type of fracture and it's the result usually of that type of force." According to Dr. Morgan, the tibia is the second largest bone in the body, and "[t]he tibia and the femur or the upper leg bone are the two most difficult to fracture." In his opinion, "[a] powerful twisting shearing type of force" was necessary to cause the type of spiral fracture sustained by K.S. Dr. Morgan considered such force to be excessive to remove a child from a car in a non-emergent situation. Yet, he acknowledged on cross-examination that the injury could have occurred by ...