DIVISION OF YOUTH AND FAMILY SERVICES v. S.S.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2963-08T42963-08T4

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Appellant,

v.

S.S.,

Defendant-Respondent.

IN THE MATTER OF J.S.

and J.S.,

Minors.

_________________________________________________________

 

Submitted September 30, 2009 - Decided

Before Judges Wefing, Grall and Messano.

On appeal from the Superior Court Of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FN-13-240-08.

Anne Milgram, Attorney General, attorney for appellant (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, attorney for respondent (Sarah L. Monaghan, Designated Counsel, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors J.S. and J.S. (Nancy E. Scott, Assistant Deputy Public Defender, on the brief).

PER CURIAM

The New Jersey Division of Youth and Family Services (D.Y.F.S. or the Division) appeals from the Family Part orders that: 1) returned to defendant, S.S., custody of her two children, J.S.(1) and J.S.(2), concluding that she had not abused or neglected the children; and 2) subsequently terminated the litigation. D.Y.F.S. and the children's Law Guardian contend that the trial judge's factual findings were "manifestly unsupported by and inconsistent with the competent, relevant and reasonably credible evidence produced at trial[.]" We have considered this contention in light of the record and applicable legal standards. We affirm.

S.S. is the mother of five children: J.S.(1), born February 2, 2001; J.S.(2), born August 19, 2003; J.S.(3), born September 5, 2004; J.S.(4), born November 7, 2005; and B.C., Jr., born November 24, 2007. D.Y.F.S. first became involved with the family on September 28, 2002 when it received a referral that an infant born to S.S. and B.C. had died. Following autopsy, the death was attributed to Sudden Infant Death Syndrome, and soon thereafter, the case was closed. On March 1, 2005, D.Y.F.S. received a referral that J.S.(1) had arrived at "daycare with a bruise on the left side of his face and bruises near his left temple, on his back and right shoulder." However, a pediatrician determined these were caused by another child.

On May 15, 2008, D.Y.F.S. received a referral from J.S.(2)'s daycare provider that the child arrived "with two cuts on his face." When asked about the marks, J.S.(2) "said his mother hit him with a brush." Later, J.S.(2) was taken to the Monmouth County Prosecutor's Office to be interviewed. The Prosecutor's Office declined further investigation or prosecution because J.S.(2)'s injuries were minor "and his disclosures were" unreliable. Nevertheless, D.Y.F.S. interviewed defendant about J.S.(2)'s injuries.

Defendant stated that the child's injuries resulted from playing football, basketball, and roughhousing at a barbecue. Defendant claimed that when she spoke to J.S.(2) about the injuries, he gave conflicting stories. A D.Y.F.S. worker interviewed J.S.(1) and J.S.(2) separately, and outside the presence of their mother. J.S.(2) told the worker that S.S. "hit him in the face with a stick." The worker interviewed J.S.(1) about his brother's injuries, and he gave multiple, conflicting accounts. First, he said that defendant pushed J.S.(2) into a wall; later, he claimed that defendant pushed J.S.(2) into a dresser. The worker's attempts to clarify the information with the child were futile. After waiting an hour, the worker again interviewed J.S.(1). This time, the child blamed his brother's injuries upon playing football. He then claimed that his other siblings caused J.S.(2)'s injuries.

D.Y.F.S. decided to remove the children from the home and filed an Order to Show Cause and Verified Complaint seeking emergency removal of all five children from defendant's custody and care. On May 15, 2008, Judge Terence P. Flynn granted D.Y.F.S.'s request, and the children were temporarily placed in the custody of their paternal aunt and in foster care.

Judge Flynn conducted a fact-finding hearing on September 2, 2008. The evidence adduced from the testimony of D.Y.F.S. investigator Lakesha Nicole Green and the Division's records revealed that on the day he was removed from defendant's custody, J.S.(1) told D.Y.F.S. workers that defendant hit the children "with a switch." He claimed that defendant told him to get the switch off a tree and then struck him in the face, neck, and back.

Doctor Steven Kairys, the Director of the Child Protection Center of Jersey Shore University Medical Center, testified at the hearing that he examined J.S.(1) and J.S.(2) later on the day of their removal. His observations about J.S.(1) included the following:

On his upper back on both right and left sides he has linear marks. There are three parallel on the right side and three parallel on the left side. Each is about three to five inches long, separated by approximately one inch. They are hyper- pigmented without other signs of scarring.

Kairys concluded that the location and symmetry of these injuries made it "less likely" they were indicative of play or roughhousing. Kairys also noted that J.S.(1) had old injuries on his back that "could be due to a belt, stick or switch in the past." When Kairys asked J.S.(1) about the cause of his injuries, the child could not recall, though he told the doctor his mother did not cause them.

Kairys also evaluated J.S.(2). He described his findings as to the child's injuries as follows:

1. On the left side of the face there is a bruise with a scab over it and still some swelling directly to the left and superior to the left eye. This is approximately 1mm in size.

2. There is also a bruise of the same age, approximately two inches above that mark, on the left forehead, also measuring 1mm in size.

3. On the right side of the face, lateral to the right eye, is a V-shaped area of hyper-pigmentation, secondary to an old injury (at least a month or so old). This area is approximately 1 1/2 inch on each arm of the V.

4. On [J.S.(2)'s] chest there [are] two linear areas of hyper-pigmentation around the nipple line, one on the right and one on the left and then a vertical mark above the nipple on the left-hand side.

Kairys concluded that the marks over J.S.(2)'s eye could have happened in a number of ways, including a fall. At the hearing, the doctor elaborated, admitting that the eye injury could have happened while playing football or could have been caused by another child striking J.S.(2) with an object. The other marks, he opined, were indicative of "traumas in the past." They could have been caused by a switch, a stick, through roughhousing or by falling against sharp objects.

Kairys also evaluated the other three children and found no signs of physical abuse. Defendant told Kairys that J.S.(1) and J.S.(2) physically fight with each other and that they were a "handful."

Kairys testified that it was "hard to tell" whether an injury was "accidental" or "inflicted." Nonetheless, he explained the criteria he used to make a determination. Regarding the marks he found on J.S.(1), Kairys concluded that they were "more likely inflicted than accidental[,]" though he acknowledged "[he] was not clear" about the conclusion. As to J.S.(2), Kairys was unable to give an opinion about whether the child's injuries were inflicted or accidentally caused. Judge Flynn extensively questioned Kairys during his testimony.

At the conclusion of the hearing, Judge Flynn entered his decision orally on the record. He noted that he "c[ould not] credit [Kairys's] evaluation as to exactly what happened." Specifically, the judge found it implausible that the marks on J.S.(1) were the result of being struck by a switch because they were "exactly parallel[.]" As to the other marks on the two boys, Judge Flynn found they likely resulted from "the types of bruises that children can get." He noted: "There's nothing in the marks themselves as even the Doctor had to admit that indicated there was any particular abuse, or that someone, the same person, created all those marks." Furthermore, the judge thought it "unusual . . . that the mother . . ., if trying to punish a child, would use a switch to the child's front." Therefore, the judge disregarded the expert testimony because it was "inconsistent with the known facts[.]" Judge Flynn refused to credit any of the children's statements based upon their inconsistencies. He further "note[d] that none of the other children ha[d] any marks on them."

Judge Flynn concluded that D.Y.F.S. "ha[d] not made its case with regard to physical abuse by [defendant]." The judge did conclude, however, that defendant was in need of services to help "get control" of her family and to learn how to discipline her children. Subsequently, D.Y.F.S. provided defendant and her family with various services. By October 15, all five children had been returned to defendant's custody and control. After a January 7, 2009 compliance review hearing at which all five children were reported to be groomed, pleasant, cooperative, and happy, Judge Flynn entered a final order terminating the litigation. This appeal followed.

The standards that guide our review are well-established. "The scope of appellate review . . . is limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). In reviewing the judge's factual findings and conclusions, "we are obliged to accord deference to the trial court's credibility determination and the judge's 'feel of the case' based upon his or her opportunity to see and hear the witnesses." N.J. Div. of Youth and Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007) (citing Cesare, supra, 154 N.J. at 411-13). This is particularly true regarding matters before the Family Part "[b]ecause of the family courts' special . . . expertise[.]" Cesare, supra, 154 N.J. at 413.

Further, "[d]eference . . . is especially appropriate when the evidence is largely testimonial and involves questions of credibility. In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997) (citation omitted). Since the "trial court hears the case, sees and observes the witnesses, [and] hears them testify, it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988) (quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)). Thus, the findings of the trial court should not be disturbed unless they are "manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]" Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484, (1974) (quoting Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)).

The purpose of a fact-finding hearing is to determine whether a child has been abused or neglected as defined by N.J.S.A. 9:6-8.21. D.Y.F.S. must prove abuse or neglect by a preponderance of the evidence, and "only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b). Thus, a "judge must be satisfied that the evidence adduced provides a sufficiently reliable basis upon which to make the required findings." N.J. Div. of Youth and Family Servs. v. J.Y., 352 N.J. Super. 245, 260 (App. Div. 2002) (citing N.J.S.A. 9:6-8.46).

Turning first to Judge Flynn's rejection of the expert testimony proffered by D.Y.F.S., it is axiomatic that a fact finder at trial is free to accept, reject, or adopt all of an expert's opinion. "[E]xpert testimony need not be given greater weight than other evidence or than it otherwise deserves in light of common sense and experience." State v. R.G.D., 108 N.J. 1, 16 n.7 (1987) (quoting State in the Interest of C.A.H. and B.A.R., 89 N.J. 326, 343 (1982)).

D.Y.F.S. argues that while the judge need not accept an expert's opinion, he must rely on "the record to indicate that the expert's findings were erroneous or suspect." We conclude that is precisely what Judge Flynn did.

Specifically, he considered the nature and shape of the marks on J.S.(1)'s body, Kairys's equivocal testimony as to their cause, and the improbable likelihood that defendant would discipline her child by using a switch to the front of his body. As to J.S.(2), Kairys never expressed an opinion that the marks on his body were actually inflicted by anyone. Thus, we conclude that Judge Flynn adequately considered the expert testimony and evidence before him and rejected it on credibility grounds. That determination is not something we should disturb. See N.J. Division of Youth and Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (finding that particular deference is given on issues of credibility).

D.Y.F.S. also argues that "[t]he trial judge simply substituted his own view of the . . . marks for that of the expert." However, a careful review of the criteria Kairys claimed to use in determining whether any particular injury was accidental or inflicted demonstrates that Judge Flynn's conclusions were adequately supported by the record. For example, Kairys testified that the location of injuries in certain areas were indicative of non-accidental causes; however, neither boy had injuries in those areas of their bodies. Moreover, Kairys himself acknowledged that many of the injuries were not inconsistent with accidental causes. In short, the argument is unavailing.

D.Y.F.S. further contends that Judge Flynn should have accepted J.S.(1)'s "clear statement" that S.S. hit the children with a switch. However, as we noted above, the child gave contradictory explanations for the injuries he and his brother suffered. Kairys testified that J.S.(1) specifically told him that defendant had not caused any of the bruises on his back.

In sum, we have carefully considered the record and find no principled reason to disturb Judge Flynn's factual findings and conclusions.

Affirmed.

 

Defendant B.C. did not participate in the proceedings below.

(continued)

(continued)

11

A-2963-08T4

RECORD IMPOUNDED

October 28, 2009