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New Jersey Division of Youth and Family Services,*Fn1 v. C.H

December 3, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,*FN1 PLAINTIFF-RESPONDENT,
v.
C.H., DEFENDANT-APPELLANT. IN THE MATTER OF D.J., Y.M. AND D.M., MINORS.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-523-11.

Per curiam.

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 20, 2012

Before Judges Fuentes, Grall, and Ashrafi.

C.H. appeals a finding that she abused or neglected a baby who had multiple, non-accidental and untreated rib fractures sustained at different times during the first year of her life. From the time the baby was born until her injuries were detected, C.H. lived with the baby, the baby's half brother and D.M., the mother of these two children. C.H. and D.M. were the baby's only caregivers.

The finding against C.H. is one aspect of litigation the Division of Youth and Family Services (Division) commenced to protect D.M.'s children, in accordance with N.J.S.A. 9:6-8.21 to -8.73 and N.J.S.A. 30:4C-12. The Division named C.H. as a co-defendant in the third amended complaint it filed in the action. Following the fact-finding hearing, the trial judge found both C.H. and D.M. responsible for the baby being abused or neglected. Because C.H. and D.M. were no longer living together and C.H. no longer had any role in caring for any of D.M.'s children, the trial judge dismissed C.H. from the dispositional phase of the proceedings. See N.J.S.A. 9:6-8.45 to -8.58a. Accordingly, the other aspects of the litigation are irrelevant to the issues raised on this appeal.

C.H. contends that the Division's evidence was inadequate to establish that she abused or neglected D.M.'s baby and that the trial judge erroneously shifted the burden of disproving that the baby was abused or neglected. Finding no legal error and adequate support for the trial judge's determinations in the record, we affirm.

I

At the fact-finding hearing, the Division introduced its investigation report, which included summaries of statements D.M. and C.H. gave to a caseworker; a report prepared by Dr. Kathryn McCans, M.D., the child-abuse pediatrician for the hospital where the baby was treated who reviewed the baby's medical records and interviewed D.M.; and Dr. McCans' expert testimony. The Division's documentary evidence was admitted without objection, and both D.M. and C.H. declined the Division's offer to have the authors of the investigation report available for cross-examination. Neither defendant presented any evidence.

The Division's evidence established that D.M. and C.H., along with D.M.'s son D.J., made a home together soon after the women met in 2009. D.M. gave birth to this baby in May 2010. Although D.M. was involved in a motor vehicle accident while she was expecting the baby, she was not injured.

Following the baby's birth, D.M. and C.H. were her only caregivers. As C.H. explained, the baby was never left with anyone else. According to D.M., the baby would not go to anyone but them. Whenever the baby awoke in the middle of the night, she slept with either D.M. or C.H. The baby's brother D.J., who was six years old, sometimes wrapped his arms around the baby and picked her up. None of the fathers of D.M.'s children lived with D.M. after the baby was born, and none of them was ever with the baby unless C.H. or D.M. was present.

On May 25, 2011, the baby was having trouble breathing. Consequently, D.M. and C.H. called 911 and she was taken to the hospital. The baby was in respiratory distress and was treated for fever and wheezing. Her condition improved with medication. Accordingly, the attending doctor wrote prescriptions and discharged her.

The following day, a pediatric radiologist reviewed the results of the baby's chest radiograph and detected multiple rib fractures in various stages of healing. There were seven rib fractures - to the right ninth and lateral right eighth posterior ribs and to the lateral left second, fifth, sixth, seventh and tenth anterior ribs. Additionally, the left eighth, ninth and tenth ribs had an "abnormal curvature" suggesting, but not establishing, additional fractures there.

Based on the number and distribution of the fractures, the radiologist believed they did not occur on a single occasion, were chronic and "very suspicious for non-accidental trauma." Accordingly, ...


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