On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket Nos. FN-11-101-09 and FG-11-22-11.
RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Yannotti and Hoffman.
Defendants J.H. and A.H. appeal from an order entered by the Family Part in protective custody litigation brought by plaintiff Division of Youth and Family Services (Division),*fn1 finding that defendants abused or neglected their child, A.M.H., Jr. (A.J.). The Division cross-appeals from an order entered in that case, which denied its motion to be relieved of its obligation to make reasonable efforts to reunify the family. J.H. and A.H. also appeal from a May 24, 2011 order entered in the subsequently-filed guardianship action, terminating their parental rights to the child. For the reasons that follow, we affirm the orders challenged by defendants in their appeals, and dismiss the Division's cross-appeal as moot.
The following is a brief summary of the relevant facts and procedural history. A.J. was born in August 2008. On January 18, 2009, defendants brought A.J. to the emergency room at Robert Wood Johnson Hospital (Robert Wood) because in the previous weeks, the child had decreased movement of his legs, decreased formula intake, a low-grade fever, and was vomiting, crying, irritable and not sleeping. A.J. was admitted to the pediatric intensive care unit. The staff noted that A.J. had low muscle tone in his legs and a palpable mass over his spine. An MRI revealed the presence of an epidural mass, possibly related to infection.
At defendants' request, A.J. was transferred to Children's Hospital of Philadelphia (CHOP) on January 24, 2009. A review of the MRI taken at Robert Wood indicated that a small lesion was pressing on A.J.'s spinal cord, which raised a concern as to a possible infection. On January 25, 2009, an emergency laminectomy, spinal decompression, and biopsy were performed. A CHOP oncologist determined that the biopsy sample was most consistent with a rare, benign fatty tumor.
After the surgery, A.J.'s condition improved somewhat. On January 29, 2009, A.J. was given physical therapy to address his poor muscle tone. The therapist extended A.J.'s extremities, noting that he had cried during the therapy but had been consolable. Later that day, after A.J. experienced increased pain with passive range of motion of his lower extremities, medical personnel prescribed pain medication.
During a physical therapy session on February 3, 2009, a hard mass was observed on the child's right elbow. X-rays revealed that A.J. had a "[c]hronic fracture-dislocation of the right elbow" and an "old healed fracture of the left radius." CHOP radiologist Richard I. Markowitz, M.D. (Dr. Markowitz) reviewed the x-rays and reported that the findings were "highly suspicious" for unsuspected or repetitive trauma.
On February 4, 2009, A.J. underwent a full skeletal survey, which revealed that he had sustained twelve to fourteen fractures, including fractures to the ribs, right humerus, left humerus, left radius, right tibia (ankle and shin), and left tibia (ankle), but otherwise had normal bone structure and density. Pediatrician Sarah Methe Frioux, M.D. (Dr. Frioux) determined that A.J.'s rib fractures likely occurred before January 8, 2009, but after December 26, 2008, and that it was not possible to date the other fractures accurately. Defendants were confronted with the results of the skeletal survey, and denied any wrongdoing. They offered no explanation as to how A.J. sustained the injuries.
On February 5, 2009, CHOP reported to the Division that A.J. had multiple, unexplained "bone fractures." Division investigator Gary Byrne (Byrne) responded to the referral. Dr. Frioux told Byrne that A.J. had up to fourteen healing fractures that were "highly suggestive of abuse," but CHOP had not yet ruled out other causes for the fractures or determined the cause of the paraspinal mass.
Byrne spoke with defendants, who denied any knowledge as to how A.J. had sustained the injuries. Defendants claimed that other people had taken care of A.J., including three persons who resided with them for several weeks in November 2008, until defendants asked them to leave for stealing and heavy drinking.
J.H. denied any domestic violence and drug or alcohol use, but admitted she was on disability for post partum depression. A.H. denied any domestic violence and current drug use, but noted that he was unemployed, having been recently fired for sexual harassment. A.H. also indicated that he had been charged with simple assault of his stepfather, and was being treated for depression.
On February 9, 2009, Dr. Frioux informed Byrne that CHOP had ruled out a genetic bone disease, sometimes referred to as brittle bone disease, because A.J. had no clinical features suggestive of the disease and there was no family history of bone fragility. CHOP also determined that A.J.'s paraspinal mass had resulted from trauma caused when he was "slammed down" on a hard surface in a sitting position. In addition, Byrne was told that two dime-sized burns in A.J.'s throat were caused by drinking overheated formula.
The Division concluded that the charges of physical abuse had been substantiated. A.J. remained at CHOP, where the physicians considered and ruled out the possibility that A.J.'s fractures were caused by a vitamin deficiency, or rickets. A skin biopsy confirmed that A.J. did not have a collagen disorder. Lab tests for calcium, phosphorus, vitamin C, copper, and parathyroid hormones were all normal. A.J.'s vitamin D level was within normal range, and he did not have any physical signs of rickets.
In addition, a CHOP pathologist determined that A.J.'s paraspinal mass was not a benign tumor, but rather a collection of ruptured blood vessels caused by trauma. The consensus of CHOP's physicians was that A.J.'s fractures, spinal abnormality, low muscle tone and poor feeding, resulted from non-accidental trauma.
On February 20, 2009, the Division filed a verified complaint and order to show cause, pursuant to N.J.S.A. 9:6-8.21 to -8.73 and N.J.S.A. 30:4C-12, seeking temporary custody of A.J. (the Title Nine case). The court entered an order awarding the Division temporary legal and physical custody of the child. The court found that it would be contrary to A.J.'s welfare to return him to defendants, noting that the child had multiple unexplained injuries that at least prima facially occurred while he was in defendants' care. The child was placed in the care of A.H.'s cousin and her husband, where he remained throughout the litigation.
The court later conducted a fact-finding hearing in the case. At the conclusion of the hearing, the judge found that the Division had established by a preponderance of the evidence that defendants had abused or neglected A.J. by inflicting non-accidental injuries and failing to exercise a minimal level of care regarding the child. The judge rejected defendants' theory that A.J.'s injuries were caused by rickets or brittle bone disease.
The judge stated that, while the Division had satisfied the preponderance of the evidence standard, he chose not to make his findings by clear and convincing evidence. The judge stated that the dating of two of the fractures indicated that they might have occurred while A.J. was hospitalized. The judge said, however, that the possibility that the two of the fractures may have occurred in the hospital did not change his opinion that the child had been abused or neglected.
The judge entered an order dated May 6, 2010, memorializing his findings. On June 18, 2010, the Division filed a motion requesting that the judge make his findings of abuse and neglect by clear and convincing evidence. The judge denied the motion.
The judge later held hearings on the Division's permanency plan for termination of defendants' parental rights, followed by foster-parent adoption. On July 1, 2010, the judge refused to approve the plan, and directed the Division to explore kinship legal guardianship (KLG).
On August 4, 2010, the judge determined that the Division's plan was not acceptable because the Division had not established that it had given good faith consideration to alternatives to termination of parental rights, including KLG. The judge stated, however, that the Division could file a guardianship complaint at its discretion.
The Division thereafter filed a motion for relief from its obligation to make reasonable efforts to reunify A.J. with defendants. The judge considered the motion and noted that the Division had made the effort to obtain jurisdiction over defendants so that they could be required to undertake services, and it would be unfair to have done "all of that ...