On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FN-14-176-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 29, 2012 -
Before Judges Espinosa and Guadagno.
Defendant Y.A. (Yasmin)*fn2 appeals from an order entered pursuant to N.J.S.A. 9:6-8.21 to -8.73 (Title Nine), finding that she abused and neglected her son, J.L. (Johnny).
Johnny was born May 25, 2009.*fn3 This case was initiated when Johnny's pediatrician, Dr. Jacek Sakowski, contacted the Division of Youth and Family Services (DYFS or the Division) on May 27, 2010, because he observed injuries on Johnny that he deemed to be suspicious.
Monica Heiman, a Family Service Specialist employed by DYFS, responded to Yasmin's home with a co-worker to conduct an investigation. They met with Yasmin and her mother, D.A. (Donna). Yasmin told Heiman that she did not know how Johnny got the marks and bruising on his body. Yasmin accompanied the DYFS employees to the Audrey Hepburn Children's House, where Johnny was examined by Dr. Nina Agrawal. Dr. Agrawal concluded that Johnny was a battered child, that the bruising was "very suspicious," and that it was necessary for him to be admitted to the hospital for further testing to ensure he had no internal bleeding or other injuries. When Yasmin did not agree to Johnny's hospital admission, the Division effected an emergency removal pursuant to N.J.S.A. 9:6-8.29 and 9:6-8.30*fn4 and brought Johnny to the Hackensack Hospital.
On June 1, 2010, the trial court signed an order to show cause and granted DYFS custody of Johnny, who was then placed in foster care. DYFS was granted continued custody on June 22, 2010, the return date on the order to show cause.
An abuse and neglect fact-finding hearing was scheduled for September 23, 2010. By August 12, 2010, Yasmin's private counsel indicated that ancillary services for an expert witness were approved. On August 25, 2010, Yasmin filed a substitution of attorney with the court. Her private counsel was relieved and, as of that date, she was represented by appointed counsel. The fact-finding hearing was adjourned to December 1, 2010.
At the fact-finding hearing, Yasmin's new counsel requested an adjournment, stating that he did "intend if at all possible to produce an expert through the Office of Parental Representation" and was unsure if he would be ready by the return date of December 14, 2010. The judge denied the request, stating that Johnny's placement had been made seven months earlier and that current counsel had since August to secure a witness and written proofs. Citing the interest of establishing permanency for Johnny, the judge continued with the hearing.*fn5
The judge heard testimony from Heiman, Dr. Agrawal and Melissa Ackerman, an employee at Johnny's daycare facility. Heiman provided evidence regarding her initial investigation through her testimony and her investigative summary, which was received in evidence.
Yasmin brought Johnny to daycare from 9 a.m. to 4 p.m., Monday through Friday. Because Johnny had asthma and was also susceptible to illness, Yasmin brought him to his pediatrician, Dr. Sakowski, about twice a week.
On May 21, 2010, Yasmin brought Johnny to Dr. Sakowski for a fever he developed while at daycare. The doctor recommended an over-the-counter medication to reduce the fever. On May 24, 2010, Yasmin noticed that Johnny had developed a rash. On May 25, 2010, the rash had not improved and Johnny had a high fever. Yasmin brought Johnny back to Dr. Sakowski, who prescribed over-the-counter medications for Johnny's symptoms. Although the rash had not disappeared, Johnny returned to daycare on May 26, 2010.
The DYFS caseworker's report included Yasmin's description of the events on the evening of May 26. Yasmin picked Johnny up in the evening, brought him home, had dinner, gave him a bath, played out on the balcony, and put him to bed. Donna arrived at Yasmin's residence around 10 p.m. to visit but was not left alone with Johnny. Yasmin told the caseworker that Johnny woke up screaming at approximately 3:30 a.m. on May 27, 2010. She did not notice anything out of the ordinary, gave him a bottle, and put him back to sleep. The next morning, Yasmin noticed blood on Johnny's clothing on his inner thigh. While changing his diaper, she saw scratch marks and bruising on his ribs that were not present the night before. She stopped by the daycare center to pick up Johnny's crib sheets and informed them she was taking Johnny to the pediatrician.
Dr. Sakowski examined Johnny later that afternoon and noted bruising on his ribcage, back, and left inner thigh, and small cuts on his left thigh and left arm. The doctor questioned Yasmin but she was unable to explain how the bruises and cuts were caused. The doctor informed Yasmin that he was calling DYFS and noted that the marks appeared to have been caused "from squeezing the child." In his referral to DYFS, Dr. Sakowski reported that Johnny had suspicious marks and bruising on his body.
Heiman recounted the information Yasmin provided to her regarding Johnny's injuries:
[Yasmin] had stated that she was not sure how the marks had appeared. She stated that she was bathing [Johnny] the night before that he did not have any abrasions or lesions on him, and when she was changing him the following morning, that is when she noticed the abrasions.
Heiman examined Johnny and observed "scratches on his arms and his thighs, and . . . bruising on either side of his rib cage and on top of bruising were abrasions." Heiman questioned Yasmin about the injuries and she replied that it was possible that Johnny, ...