NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. S.R. and P.P.

 
(NOTE: The status of this decision is .)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1698-09T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

S.R.,

Defendant-Appellant,

and

P.P.

Defendant.

IN THE MATTER OF K.R.,

a minor.

December 3, 2010

 

Submitted November 17, 2010 - Decided

 

Before Judges Axelrad, R. B. Coleman, and J. N. Harris.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-170-09.

 

Paul Fernandez & Associates, P.C., attorney for appellant (Michael J. O'Shea, on the brief).

 

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kimberly Gunning-Marcantonio, Deputy Attorney General on the brief).

 

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor K.R. (Nancy E. Scott, Assistant Public Defender, on the brief).

PER CURIAM

Appellant S.R. fathered a daughter K.R. in January 2009. S.R. appeals from an order entered on October 29, 2009, which found that S.R. had abused K.R. by inflicting two fractured ribs on the infant. K.R.'s mother P.P. was found not to have abused the child, and the infant was returned to her custody after a dispositional hearing. Arguing essentially that the Family Part's determination of abuse was against the weight of the evidence and that the court improperly reallocated the burden of proof, S.R. seeks to reverse the Family Part's conclusions. Because we are unable to agree that errors were committed in these proceedings, we affirm.

I.

The Division of Youth and Family Services (DYFS) became involved with S.R. and his daughter on April 23, 2009, after DYFS received a referral from St. Joseph's Hospital, where a pediatrician suspected that K.R. had been physically abused. At the time, S.R. was twenty-three years old and P.P. was nineteen. Before the birth of their child, S.R. and P.P. lived separately in Paterson, two buildings apart from each other. After K.R.'s birth, S.R. visited with his daughter at the home of the child's mother on multiple occasions. In April 2009, S.R. moved in with P.P. and K.R.

On April 20, 2009, after P.P. had brought K.R. to the family pediatrician for suspicious bruising and bleeding, the then three-month old infant was admitted to St. Joseph's Hospital. Two days later, K.R. was evaluated by Dr. David Kroning, M.D., Chief, Pediatric Emergency Department, and principal of the Child Protection and Safety Center at the hospital. Dr. Kroning conducted a physical examination of K.R. and also reviewed her medical records, which included a previous emergency room visit to St. Joseph's Hospital on February 28, 2009. Those records indicated prior concerns of bruising and rash-like symptoms on the infant. During the physical exam, the doctor found further bruising on the infant's chest.

Dr. Kroning ordered a skeletal survey, and also consulted with Dr. Dennis John Kou, M.D., a hematologist, to rule out any blood disorders that could be causing the bruising. During his review of the skeletal survey, Dr. Kroning consulted with Dr. Robin Frank-Gerzberg, M.D., a radiologist at the hospital, who concluded in her report that there were bi-lateral healing rib fractures present in the child. As a result of these observations and conclusions, DYFS was contacted to report that K.R.'s injuries were likely the result of physical abuse.

As a result of the physical examinations and prior history, DYFS activated an emergency removal of the child pursuant to N.J.S.A. 9:6-8.26 and -8.30 on April 29, 2009. The next day, DYFS filed a Verified Complaint and an Order to Show Cause against both parents, seeking the continued care, custody, and supervision of the minor with DYFS. The Family Part granted this request in an order dated May 1, 2009.

Thereafter, on October 8, 9, and 29, 2009, factfinding hearings were conducted by Judge Miguel A. de la Carrera. Dr. Kroning, two DYFS employees, and the child's parents testified. At the conclusion of the proceedings, Judge de la Carrera rendered an oral opinion in which he found that DYFS had proven child abuse by S.R. only.

Dr. Kroning opined that K.R. suffered rib fractures caused by compressions, specifically by non-accidental trauma and excessive force. Additionally, K.R.'s prior hospital visit in February 2009, due to facial bruising, was also likely caused by trauma, as there was no other possible explanation for such bruising to a four-week old infant since a blood disorder had been ruled out by the hematologist.

At the close of DYFS's presentation of evidence, the parents made a motion to dismiss the matter for failure to establish a prima facie case of abuse or neglect. DYFS argued that N.J.S.A. 9:6-8.46(a)(2) applied, which, based on the evidence, presumes abuse or neglect by the parents. Judge de la Carrera denied the parents' motion, finding that DYFS met its burden that the infant was in the care of S.R. and P.P, "although of course primarily [by P.P.]," and that excessive force had been used on K.R.

As the factfinding process proceeded, S.R. asserted that he only visited K.R. on weekends, but did accompany P.P. to both St. Joseph's Hospital in February 2009 and to Hackensack University Medical Center in March 2009 after another incident of bruising occurred. S.R. claimed that April 19, 2009, was the first time he was ever left alone with his infant daughter, and that after trying to feed her a bottle, she began to vomit blood; S.R. and P.P. then immediately rushed K.R. again to St. Joseph's Hospital where she was examined and then released without incident. S.R. also indicated that after K.R. was injured in April 2009, he and P.P. began to resolve their relationship, and enjoyed a renewed romantic connection.

P.P. also testified, noting that childbirth was difficult despite a cesarean section. Offering additional explanations for K.R.'s bruising, she explained that in February 2009, she took the infant to the pediatrician for vaccinations and ear piercing, and the doctor had to firmly hold K.R.'s face down to keep her from moving. P.P. testified that she was concerned her daughter might have anemia or leukemia, or another blood disorder, so she promptly brought K.R. to Hackensack University Medical Center when a second episode of bruising took place. The infant was scheduled for a follow-up visit, during which it was reportedly very difficult for the nurses to draw blood, which P.P. offered as an explanation for further bruising. P.P. also confirmed S.R.'s account of the evening of April 19, 2009, when K.R. vomited blood after taking her bottle, but emphasized she had never before seen her daughter vomit blood.

On cross-examination, P.P. gave conflicting testimony that, despite S.R.'s claims to the contrary, he was actually a regular visitor with his daughter almost every day, especially in the first few weeks after her birth, and not just on weekends.

After considering all of the testimony and evidence presented, Judge de la Carrera issued a decision from the bench on October 29, 2009. The court concluded that DYFS had met its burden by a preponderance of the evidence, finding that the doctor's expert testimony persuasively established that there were non-accidental compression-related injuries to K.R. consistent with abuse. Commenting upon the credibility of the parents, the court concluded that S.R. was not credible because he was inconsistent, specifically regarding his work history and the nature of his relationship with P.P. Observing that S.R. had many pressures in his life, including family, financial, and work-related stress, the court found the following:

Now as Dr. Kroning testified, it can take a millisecond to cause the kind of compression fracture which is involved here. [It] [d]idn't take [much] time. It hardly strikes the Court as implausible or improbable that the stressed out young father who for months had been doing very little to spend time with this infant, who had never taken the infant to his home right next door, and when asked why not couldn't really offer a reason. That this stressed out father had a terrible reaction to this finding himself suddenly and for the first time dealing with the reality of this infant, holding this infant, trying to feed it, and effectively assaulting this infant, because I believe that's what happened.

The court further found that P.P. was likely trying to cover up for S.R., or at the very least "bought into" his explanations and overlooked the obvious fact that the child's father was the one who was, in fact, causing her child's injuries.

Ultimately, the court determined that S.R. abused the infant, but that P.P. did not. It directed that custody be returned to the mother with the self-executing reunification occurring under the watchful eye of DYFS, and dependent upon S.R. moving out of the residence prior to the return of the child. Supervised visitation was ordered between S.R. and K.R. Following an April 2010 compliance review, the Title 9 litigation was terminated, with legal and physical custody of K.R. remaining with P.P. This appeal followed.

II.

A.

S.R. argues that the Family Part improperly applied the rebuttable presumption of abuse or neglect contained within N.J.S.A. 9:6-8.46(a)(2) to his case. He contends that this was improper because it resulted in the reallocation of the burden of proof from DYFS to him, where most of the injuries to K.R. occurred before April 19, 2009, which he alleges was the first and only time he was left alone with his daughter.

Our Supreme Court has firmly held:

In a non-jury civil action, the trial court shall make findings of fact and state its conclusions of law. R. 1:7-4(a). That is, "the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions." Curtis v. Finneran, 83 N.J. 563, 570 (1980). Moreover, appellate courts "defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citation and internal quotations marks omitted). Indeed, we recognize that "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).

 

[N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010).]

 

However, our courts have also held that when the alleged error is one of factfinding, as argued in this case, "the traditional scope of review is expanded." In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993). If the trial court's findings are "'so wide of the mark that a mistake must have been made,'" they are not entitled to our deference. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007) (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)).

Pursuant to N.J.S.A. 9:6-8.46(a)(2),

[i]n any hearing under this act, . . . proof of injuries sustained by a child or of the condition of a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or guardian shall be prima facie evidence that a child of, or who is the responsibility of such person is an abused or neglected child.

 

In explaining this provision of the statute, we stated:

[t]he establishment of a prima facie case [of child abuse] does not require the court to find that the parents were culpable; it merely establishes a rebuttable presumption of parental culpability which the court may or may not accept based upon all the evidence in the record. Before relying upon its provisions, the court should consider such factors as the strength of the prima facie case and the credibility of the witnesses testifying in support of it, the nature of the injury, the age of the child, relevant medical or scientific evidence and the reasonableness of the caretaker's explanation in light of all the circumstances. In weighing the caretaker's explanation, the court may consider the inferences reasonably drawn from his or her actions upon learning of the injury. Certainly, the caretaker's failure to offer any explanation for the child's injuries, to treat the child, or to show how future injury could be prevented are factors to be considered by the court, for they reflect not only the caretaker's fault and competence but also the strength of the caretaker's rebuttal evidence. This traditional res ipsa loquitur approach represents the correct interpretation of N.J.S.A. 9:6-8.46(a)(2) as applied . . . where . . . [a] child [is] exposed to a number of unidentified individuals over a period of time, and where the timing of the injuries is uncertain, [and where the parents] may not ever be able to prove how the injuries occurred.

 

[Div. of Youth & Family Servs. v. J.L., 400 N.J. Super. 454, 471-72 (App. Div. 2008) (citations omitted).]

 

In the present case, Judge de la Carrera fully considered all of the evidence and testimony presented to him by both DYFS and the defense. It was proper to apply the statute and shift the burden to appellant to rebut the presumption to prove non-culpability. N.J. Div. of Youth & Family Servs. v. S.S., 275 N.J. Super. 173, 179 (App. Div. 1994); In re D.T., 229 N.J. Super. 509, 517 (App. Div. 1988). Defendant argues that "it was error for the court to require defendant to come forward with evidence rebutting the presumption of child abuse, because K.R. was first left unattended with him on April 19, 2009, which was after most of the suspected injuries were caused."

However, the medical evidence plainly established that despite some possible innocent explanations for the minor's injuries, they were most likely the result of trauma caused by S.R. DYFS's medical expert, Dr. Kroning, testified in regard to the frequent and unexplained bruising that "[a] four-week old baby can't generate enough force on its own to inflict its own injuries" and that there are no other known possible explanations "outside of trauma for facial bruising on a four-week old infant."

With respect to the rib fracture and the other fracture that was already healing, the expert rejected the contention that the injuries occurred during childbirth, stating that "[t]hey would have been healed by now. They don't it doesn't take two and a half months to heal." Moreover, hard or sharp objects in K.R.'s crib could not have caused the fractures, nor could the infant have caused such injury to herself.

When S.R. testified, he asserted that he only visited his daughter on weekends after the child was born, but P.P.'s testimony indicated that he would visit often during the week when he was not working late. S.R. was also inconsistent in his testimony regarding his work history. Additionally, there were inconsistent renditions regarding the nature of S.R.'s relationship with P.P.; at first he testified that they were a couple when the minor was born, but later changed his testimony that they were not, but only started dating after the medical issues arose.

The Family Part found that S.R.'s courtroom demeanor and testimony were riddled with inconsistencies and he was not believable. Additionally, the court noted that P.P.'s alternative theories about K.R.'s injuries were speculative, and that she had been deceived by S.R., stating, "she's bought into that, and that's why, again, even though he was quite neglectful of the child during . . . the first few months of the child's life, she in her grief bonded with [S.R.] in a way that she never had previously."

With respect to Dr. Kroning's testimony, the court concluded that he "established quite convincingly that there were injuries of a non-accidental sort suffered by this child." Moreover, after summarizing Dr. Kroning's testimony regarding the various injuries to the infant, the court concluded that the expert testimony "quite convincingly established that all of the alternative theories which have emerged during the course of this proceeding just hold no water."

The conflicting and inconsistent testimony given by S.R. and P.P. revealed that the infant's mother was the primary caregiver, with some help from P.P.'s mother, but that S.R. also cared for K.R. as well. Because of the limited number of individuals who had the opportunity to harm or cause trauma to K.R. during her short lifetime, the court acted reasonably in applying N.J.S.A. 9:6-8.46(a)(2) to S.R.

After a review of all of the evidence and testimony presented, it is clear that Judge de la Carrera's conclusions were based on "adequate, substantial, credible evidence" and will therefore not be disturbed by us. Cesare v. Cesare, 154 N.J. 394, 411-12 (citing Rova Farms Resort, Inc. v. Investors, Inc., 65 N.J. 474, 484 (1974)).

B.

S.R. next argues that DYFS did not meet its burden of proof by a preponderance of the evidence, citing several reasons. He takes issue with the Family Part's characterization of P.P.'s testimony, claiming that: (1) the court had no basis for finding that the infant's mother was so traumatized as to "overlook the obvious" that defendant was abusing K.R.; (2) the trial court had no basis to conclude that P.P. was attempting to cover up for S.R., and should not have based such conclusion on his experience in other cases; and (3) the trial court improperly found P.P. to be credible when she alleged she did not harm the infant, but incredible when she exculpated defendant.

In this case, the Family Part made credibility determinations regarding the parents' testimony. It was entirely reasonable to conclude that the infant's mother would search for possible explanations for her daughter's medical issues, not wanting to believe that the father of her child was to blame. These excuses included rib fractures from a difficult child birth; difficult vaccinations, blood work, and ear piercings; or possible leukemia or other blood disorder.

The court took note of this testimony provided by the mother that she and S.R. were romantically involved throughout this entire ordeal, fortifying the court's opinion that

sometimes people come together at times of crisis with the strangest of alliances and allegiances of positions . . . it's easier to believe she's got an ally. And it's desirable to believe that that ally is the father of your child, when in fact I think that that's the opposite of the reality here.

 

The Family Part was fully within its discretion to make these credibility determinations from the testimony of P.P., and as such, they are neither irrational nor illusory, and will not be disturbed by this court.

C.

Next, S.R. contends that the court improperly accepted Dr. Kroning's detail of multiple fractures and bruises. Appellant notes the contrary evidence such as (1) the radiologist's report indicating only suspected healing fractures and (2) the existence of rashes, not bruising. S.R. also claims that DYFS should have called the radiologist Dr. Frank-Gerzberg as a witness instead of Dr. Kroning and that there were several other plausible explanations for the bruising and fractures.

We are obliged to "rely on the trial court's acceptance of the credibility of the expert's testimony and the court's factfindings based thereon, noting that the trial court is better positioned to evaluate the witness' credibility, qualifications, and the weight to be accorded her testimony." In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999). The court's reliance on the expert testimony of Dr. Kroning should remain intact if "[t]here is no basis in the record to indicate that the expert's findings were erroneous or suspect. The expert was well qualified, [his] evaluation addressed all the relevant issues, and [his] conclusions were supported by other facts in the record." Ibid. Those are plainly the conditions under which Judge de la Carrera relied upon the opinions of Dr. Kroning.

Dr. Kroning's report and testimony included the findings of a hematologist, a radiologist, and a geneticist. Dr. Kroning was properly qualified as an "expert in pediatrics with a sub-specialty in pediatric trauma, child abuse, and neglect." We harbor no doubts about the propriety of the Family Part's adoption of Dr. Kroning's well-documented opinions as the foundation for his factfinding of abuse.

This court has held that "[i]n abuse and neglect hearings 'it is of great importance that the evidence upon which judgment is based be as reliable as the circumstances permit and that the answering parent be given the fullest possible opportunity to test the reliability of [DYFS's] essential evidence by cross-examination.'" N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 94-95 (App. Div. 2008) (quoting In re Guardianship of Cope, 106 N.J. Super. 336, 343 (1969)).

S.R. contends that he was prevented from eliciting the proper cross-examination from Dr. Kroning on the matters of the x-rays and caesarian sections. We find that argument is without merit based upon our review of the record of the factfinding hearing. After a thorough direct and cross-examination, Dr. Kroning explained all of the issues presented, and along with the introduction of the hospital records and test results into evidence, concluded that in his expert opinion, K.R. was an abused child, and that her injuries could only be the result of trauma and abuse. S.R. was not deprived of an opportunity to test those opinions in the crucible of these proceedings. His inability to persuade the Family Part to reject Dr. Kroning's well-placed opinions is not indicative of a denial of due process or breach of the rules of evidence.

D.

Lastly, defendant argues that the Family Part improperly considered S.R.'s courtroom demeanor and lack of clarity about his work history when issuing its remarks regarding defendant's credibility. In his oral opinion, Judge de la Carrera observed that S.R.'s "testimony almost from the beginning had me doubting his credibility," and went on to explain the inconsistencies in defendant's testimony regarding his work history and relationship with P.P. The lack of credibility in defendant's testimony, in addition to his poor courtroom demeanor and lack of interest in the proceedings, caused the court to make the credibility determinations that it did.

Here, the Family Part had the discretion to believe or reject the testimony and opinions of the witnesses, in whole or in part. Pansini Custom Design Assocs., L.L.C. v. City of Ocean City, 407 N.J. Super. 137, 143 (App. Div. 2009); Torres v. Schripps, Inc., 342 N.J. Super. 419, 431 (App. Div. 2001). We do not discern such an abuse of discretion so as to compromise the court's fully-articulated and well-reasoned assessment of the believability of the witnesses.

E.

To the extent that we have not explicitly addressed the balance of S.R.'s arguments, including his global assertion that the Family Part's "fact and credibility determinations were against the weight of the evidence," we find that they lack merit and are unworthy of discussion. R. 2:11-3(e)(1)(E).

Affirmed.