NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. D.J.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4259-08T44259-08T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

D.J.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF M.J.,

a minor.

_________________________________________________

 

Submitted March 17, 2010 - Decided

Before Judges Payne and Waugh.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Essex County, Docket No. FN-07-497-07.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Laura M. Kalik,

Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Steven J. Klein, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender,

Law Guardian, attorney for minor

respondent (Noel C. Devlin, Assistant

Deputy Public Defender, on the brief).

PER CURIAM

D.J., the father of M.J., appeals from an order of a judge of the Family Part holding that he abused and neglected his four-year-old son by intentionally burning the child with an iron, an act that the judge found constituted excessive corporal punishment. See N.J.S.A. 9:6-8.9d(2). On appeal, the father raises the following arguments:

I. THE FACT FINDING PROCEEDING BELOW DID NOT RELY UPON COMPETENT, CREDIBLE, ADMISSIBLE EVIDENCE.

A. The Trial Court Erred In Relying Upon Inadmissible Hearsay To Corroborate A Child's Out-Of-Court Statement. (Not Raised Below.)

B. The Trial Court's Decision Must Be Reversed Because There Was Insufficient Evidence To Support The Trial Court's Finding That D.J. Inflicted Excessive Corporal Punishment On M.J. (Not Raised Below.)

We reverse.

I.

The record discloses the following facts. On May 25, 2007, a daycare facility, Three Stages Learning Center, located in East Orange, informed a representative of the Division of Youth and Family Services (DYFS) that a four-year-old boy in Three Stages' care complained of pain in his arm. On examination, the child was found to have two parallel red marks on his left forearm. The child stated that his father had burned him with an iron.

DYFS sent an investigator, Shurah Llanos, and her supervisor, Lorraine Peters, to the school. Their investigation was set forth in a Referral Response Report written by Llanos that was marked in evidence at a hearing conducted on May 30, 2007 at which Peters was the only witness. The report noted that the father was employed as a transportation aide at the University of Medicine and Dentistry of New Jersey (UMDNJ). The biological mother was not currently employed.

The mother was previously known to DYFS as a result of a report, on January 28, 1997, that the mother had given birth to a baby in a toilet. The mother was taken to the hospital by an emergency response team, but did not disclose the presence of the baby. When the child was found in the toilet, she was "asphyxiated and brain injured." The mother was charged with attempted murder and aggravated assault, serious bodily injury. However the charges were dismissed, and she was found guilty of endangering the welfare of a child, receiving a three-year probationary sentence. The child remains under the care of her maternal grandmother and is severely handicapped.

With respect to the present incident, Llanos and Peters were informed by a school employee that the child "showed her his arm and stated that his father . . . had burned his arm in the morning." The school employee stated that the child "has never come in with any marks on him before."

Llanos then asked to interview the child in the social worker's office. The child confirmed that his father works at UMDNJ and stated that his mother "goes to school and work." However he was unsure of the location of either. The child then showed Llanos his left arm and told Llanos "that his father burned his arm with the iron," "plac[ing] the iron on his arm until it turned red." When asked why his father would do this, the child said that "his father does things like that all the time." He "stated that his father hurts him and his mother all the time." The child went on to say that "his father yells and hits his mother all the time." When asked how his father disciplined him, the child did not understand. However, when showed a set of keys, told to pretend they were his father's, and asked what he would do if told by his father not to touch them, the child said he did not touch his father's stuff. The child stated that, if he were yelled at by his father, he would hide, and that he was afraid of his father.

The child stated that his mother was present when he was burned and instructed the father: "Don't do that to [the child]." The father then went to work, and the mother took him to school.

The police were summoned to the school. Upon their arrival, they took statements from Llanos, the reporting school employee and the child. According to Llanos, the child "reiterated that his father placed the iron on his arm and burned him."

The mother arrived at the school at about 5:15 p.m. While Llanos was summoning the police back to the school, she overheard the mother questioning the boy as to why DYFS wanted to talk with her. The boy responded "that it was because of what daddy did to my arm." On hearing his statement, the mother "yelled," "[h]e did not do that stop saying that." The child was then removed from the room, and the mother was questioned as to what had happened. She responded: "to be honest, I can't even tell you." When Llanos told the mother that the child had blamed his father, the mother stated that "his father didn't do it because he leaves at 5 am every morning."

The mother stated that she had used the iron on the morning in question to iron clothes. When she was finished, she unplugged the iron, wrapped the cord up, and "placed the iron back on the crate." However, in a home visit later that day, Llanos viewed the crate and was of the opinion that the iron was placed out of the child's reach, and "there was no way that [the child] could have accidentally brushed by the iron." Llanos noted that the mother continued to deny that the child had been burned by the father, stating that the mark on his arm could be an allergic reaction. She also denied domestic violence in the home. She stated, contrary to her son's statement, that she was neither employed nor in school at the time.

Llanos, the child and his mother were then transported to the East Orange Police Department, where the child repeated that his father burned his arm, and the mother stated that she did not know what had occurred.

Thereafter, two officers, Llanos, the child, and the mother were taken to the family home. When one officer, Llanos and the mother entered, the father asked where his son was. Upon inquiry, the father stated that he did not know what happened to his son's arm, and he denied knowledge of a burn or why "his son would say such a horrible thing." The report continued:

(At this point in time, [the mother] was in the bedroom trying to pack a few of [the child's] belongings. [The mother] was shivering and pacing when [the father] spoke.) [Llanos] then stated to [the father] that the Division has taken custody of [the child] since no one seems to know what happened to [the son's] arm, and that court will be Wednesday, May 30 at 2:00 pm. [The father] appeared to be getting upset and he stood up and started to yell at [Llanos.] The male officer told [the father] to calm down and take his seat. [The father] tried to walk into the kitchen, but the male officer stopped him and told him to sit back down. [The father] staggered back to the couch and [Llanos] could smell liquor on [the father's] breath.

The father responded that he had a few drinks to celebrate his sister's birthday. He denied that there was domestic violence in the home. The report continued:

[Llanos] then observed [the mother,] who appeared to be confused as to what to pack. [Llanos] then went into the bedroom with [the mother] to talk to her. [Llanos] whispered to [the mother]: "Is it safe to say that what your 4 year old had told me was true?" [The mother] shook her head yes and started to cry, but as she cried she tried her best to withhold the sounds of her cry so that [the father] could not hear her.

The mother declined Llanos's offer to take her to a shelter, stating that she felt safe in the home.

At the conclusion of the testimony of DYFS supervisor Peters, who had been present only at the daycare center and otherwise testified on the basis of Llanos's Referral Response Report, the judge determined that removal of the child was necessary to avoid ongoing risk to his life, safety and health. The child was made a ward of the court and placed in the immediate care, custody and supervision of DYFS. A further hearing was scheduled for June 22, 2007. Weekly supervised visitation with the mother was ordered. However, visitation with the father was deferred pending a psychological evaluation.

At the June 22 hearing, supervised visitation with the mother was continued. The father was again denied visitation until his psychological evaluation had taken place and the child had undergone play therapy. The couple was referred to Family Connections for counseling. A fact-finding hearing was scheduled for September 10, 2007.

Prior to the fact-finding hearing, on August 8, 2007, psychological evaluations of the mother and father were conducted on behalf of DYFS by Dr. Margaret DeLong. The reports, which DYFS acknowledged having received at the time of the fact-finding hearing, do not appear to have been produced at the hearing. Dr. DeLong described the mother as a "highly defensive" woman who denied historical information until confronted with it. During the interview, she appeared "confused" and "she often talked in circles, not responding to questions that were posed her." According to Dr. DeLong:

It was very difficult to obtain information from [the mother]. She contradicted information in the referral material. She did not understand, or pretended not to understand, simple questions that were posed to her. At other times, her response had nothing to do with the question posed to her. It was unclear if this was related to poor reality testing, an attempt to avoid questions, or low cognitive functioning. Although she appeared confused at times and demonstrated poor reality testing, she did not show other evidence of low cognitive functioning. [The mother] appeared defensive during most of the evaluation, and rapport was not established. She rarely smiled. She attempted to make the appearance of being cooperative, but she was difficult to work with.

During the interview, the mother denied the existence of domestic violence. She stated that her son's burn was an accident, and she denied that she appeared afraid of the father while in the presence of Llanos. Additionally, she denied that she had ever told Llanos that she believed her son's story, and she stated that her son loved his father and was not afraid of him. Dr. DeLong recommended that the mother continue to participate in individual counseling, receive parenting training and continue to participate in supervised visitation. Dr. DeLong stated that "[i]n the event that reunification occurs, it would be helpful to have a parent aide in the home to assist with monitoring in the home, as well as assisting [the mother] with implementing parenting skills." A psychiatric evaluation was recommended, with formal intellectual/cognitive testing if concerns about intellectual functioning remained.

Dr. DeLong's evaluation of the father was considerably more favorable. The father denied burning his son and beating the child's mother. He stated that he had two older children, and had taken custody of his older son, raising him as a single father without incident. He acknowledged that the mother had moved from the residence at his request, so that he could eventually regain custody of the younger child. He had been unaware of the mother's prior involvement with DYFS until the recent episode occurred. With respect to the circumstances of the burn, the father stated that the mother "cannot tell me what happened that morning that [the child] got burned." The father stated that he was at work, and that the burn was too recent to have been inflicted by him. The father admitted that on one occasion he had used a belt on his child, and as a result he felt guilty.

In giving her clinical impressions of the father, Dr. DeLong noted that he did not present with a significant mental health problem that would interfere with his ability to parent. The father did not appear to have a problem with anger management or impulse control, and he denied committing domestic violence. He had been employed in the same job for sixteen years. His judgment did not seem impaired, and his intellectual functioning was "at least" average. Additionally, the father was found to demonstrate adequate parenting knowledge and skills, together with an understanding of a child's emotional needs. Dr. DeLong's primary concern appeared to be with the father's use of alcohol, and she repeated the father's concerns regarding the mother's functioning. The father was reported as indicating that, until someone stated that it was okay for the mother to live with the child "there is no way that she could live in the same house with him." Dr. DeLong recommended that the father participate in parenting skills training, supervised visitation, and individual counseling to address his emotional difficulties arising from separation from his son. The doctor also recommended a substance abuse evaluation and the placement of a parent aide in the home if reunification occurred.

At the fact-finding hearing, conducted on September 10, 2007, testimony was provided by Llanos, the mother and the father. The child was not present during the proceedings and was not interviewed in camera. In large measure, Llanos's testimony was similar to that of Peters, given at the May 30 hearing. Llanos testified that when she interviewed the child at his school, he displayed two linear, reddish lines on his left forearm, stating "my father does things like this all the time. . . . My father held the iron there until it turned red." The child additionally stated that his father hits his mom and yells at his mom and him all the time. The child could give no reason for the burning.

Llanos testified to statements made by the child and his mother in interviews at school and the police station as set forth in the Referral Response Report that has been previously described. In describing the mother's response in the bedroom to her question whether "what your four year old told me earlier is true," Llanos testified that "[the mother] held her head down, and then she just started crying, and she was like, yes." At the time, Llanos testified, the mother was "standing there, and she was shaking frantically. I mean her hands w[ere] moving, every part of her whole body was just shaking. . . . She appeared distraught." Llanos testified that the mother refused the offer of a shelter. Llanos again expressed disbelief that the child could have reached the iron when placed on the crate. Further, Llanos speculated that if the child had pulled the iron down, she believed it would have possibly hit him on his face, not directly on his forearm.

Llanos testified that, after the home visit, she took the child for a medical examination by Dr. Charles Osei at Beth Israel Medical Center in Newark, which occurred at 10:30 that night. The DYFS form upon which the doctor's observations were recorded, admitted over objection as a business record, noted the child's statement that "his father held his hand and burned with hot iron this morning because child wanted to throw plastic bottle at father." He recorded "3 x 0.5 cm. linear burn marks on (L) forearm x2 proximal and midarm" and he noted the "instrument used" to have been a "hot iron." In a chart giving the options of accidental, non-accidental and physiological, the doctor checked that the marks were non-accidental. However, that determination appears to have been premised solely on the child's report of the event, as nothing indicates an independent determination by the doctor.

In cross-examination of Llanos, the contradiction between the child's statement that his mother worked and attended school and the mother's statement that she did neither was brought out. It was also noted that the school had never previously observed marks on the child. Llanos testified that she had no knowledge of criminal, abuse or neglect, or domestic violence complaints against the father. She also admitted that she had no independent knowledge whether the child could have been burned before the iron was placed on the crate.

Following the testimony of Llanos, the mother was called as a witness by the father's attorney. The mother testified that she had met the father one year after the birth of her first daughter a child whom she rarely saw. She stated that the father worked in medical transport at UMDNJ from 7:30 a.m. to 4:30 p.m. He cleaned the apartment; they both cooked; and she usually did the ironing. The mother denied the existence of domestic violence in the home, and she denied that she was afraid of the father. She confirmed that he had not hurt her after the police left on May 25. The mother acknowledged that she had moved from the home after the incident at issue, but she stated that she still called and visited the father.

The mother testified that just she and the child were present in the apartment at the time the burn occurred. She confirmed that she had ironed that morning, and she testified that the child was trying to get toys placed on the side of the crate when he was burned. However, she did not witness what had occurred, having been in the living room at the time.

The father also testified on his own behalf. He confirmed that he had been a transporter at UMDNJ for sixteen years, and his counsel introduced into evidence eight awards and character references, including a father of the year award, a superior performance award dated February 16, 2002, and character references from pediatrician Mary Cantey, M.D., plastic surgeon Richard L. Agag, M.D., surgeon Anthony J. Costa, M.D., and co-worker Haydee Ramos. The father also introduced into evidence his time card, which indicated that he had clocked in at UMDNJ at 7:12 a.m. on May 25. The father stated that he leaves home in East Orange every morning between 6:15 and 6:20 and that he travels to work by bus. On the morning in question, construction slowed his trip. The usual length of the bus trip was not specified. The father stated that he has his own clothing dry cleaned. Although he was never asked whether he ever ironed, the father testified that the mother normally ironed her things and the baby's clothes.

The father denied any knowledge of how his son had gotten burned. He testified that he had told the police: "I didn't know anything about [the child] being burnt with an iron at all. I wasn't anywhere around. I don't know anything about this. It was a surprise to me." The father testified that he got along "wonderful" with the mother, and that he was not angry at the child for misstating the circumstances of his burn.

Following summations by counsel, the Family Part judge rendered an oral opinion. The judge first found that disciplining a child by holding a hot iron to his skin until it turned red constituted excessive corporal punishment. She then determined that the remaining issue was "who was involved." In making that determination, the judge evaluated the credibility of the three witnesses, finding Llanos to have been "extremely credible" because she did not have a motive to lie. She found the testimony of the mother to have been "a bit shaky, she seemed hesitant" and she discounted the mother's testimony that the child was reaching for a toy when burned, stating "she was sort of making it up as she went along" and observing that she did not witness the child's act. Noting that, when on the stand, the mother did not deny "making the statement . . . that was attributed to her by the caseworker, where she admitted that what [the child] was saying about how the burn happened was true," the judge credited that the mother "made an admission to the caseworker that the father that she knew that the father had burnt the child with an iron that earlier that day." That statement, the judge found, constituted "substantial corroboration" for the child's claim that the injury had been inflicted by the father. The judge then discredited the father's testimony that the event had not occurred as described, and on this basis she found that the father "abused and neglected this child because of the fact that he inflicted excessive corporal punishment on his child." Additionally, the judge found that the mother breached her duty to protect her child and thus had abused and neglected him. Additionally, the judge noted that nothing had been put on the burn by the mother after it had occurred.

Following the completion of therapy by the child and his parents, physical custody of the child was returned to his father by order dated July 16, 2008. The mother was permitted unsupervised contact with the child, but ordered not to be the child's primary caretaker. Legal custody of the child was returned to his parents by order dated October 8, 2008. The abuse and neglect litigation was terminated on April 3, 2009.

The record reflects a report of a January 25, 2008 counseling session between an El Shaddai counselor, the father and his son, at which time the son "stated to the counselor that his father did not burn him with iron. He said that the iron fell on his arm." In a report of a February 1, 2008 assessment of the father and mother in their home, an El Shaddai counselor was informed by the mother "that when she met with the DYFS representative she was very nervous and afraid to tell the truth about how her son got burned. She said that the iron was on the bed and his elbow touched the iron." Additionally, the record reflects that, in a psychosexual evaluation of the child conducted on October 30, 2008, the child was asked what was the worst thing that had ever happened to him, and he responded: "I got a needle from the doctor and an iron fell on me."

II.

The issue in this matter is whether the evidence adduced at the fact-finding hearing of September 10, 2007 was sufficient to sustain a finding of abuse and neglect on the part of the father. In this context, we have held:

The fact-finding hearing is a critical element of the abuse and neglect process. The judge, as the fact-finder, is there "to determine whether the child is an abused or neglected child as defined herein." N.J.S.A. 9:6-8.44. The judge's determination has a profound impact on the lives of families embroiled in this type of a crisis. Judicial findings based on unspecified allegations, hearsay statements, unidentified documents and unsworn colloquy from attorneys and other participants erodes the foundation for the twin pillars upon which the statute rests: (1) that no child should be exposed to the dangers of abuse or neglect at the hands of their parent or guardian; and, commensurately, (2) that no parent should lose custody of his/her child without just cause.

The judge's determination, therefore, must be based on competent reliable evidence. N.J.S.A. 9:6-8.46; R. 5:12-4(d). The judge must articulate, with particularity, the facts upon which a determination of abuse or neglect is made. N.J.S.A. 9:6-8.50. These factual findings must be supported by evidence admitted during the hearing, which shall be held on the record. All documentary exhibits considered by the court must be clearly identified for appellate review. R. 1:2-3. Testimonial evidence must be presented through witnesses who are under oath, N.J.R.E. 603, and subject to cross-examination. N.J.R.E. 611. In short, this critically important part of the business of the Family Part demands meticulous adherence to the rule of law.

[New Jersey Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265-65 (App. Div. 2002).]

In a proceeding such as this, DYFS bears the burden of establishing prima facie evidence of abuse and neglect. Once established, the burden of going forward shifts to the accused parents. However, the burden of persuasion remains with DYFS. Div. of Youth & Family Servs. v. J.L., 400 N.J. Super. 454, 470 (App. Div. 2008).

[P]roof 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 . . . .

[N.J.S.A. 9:6-8.46a(2).]

However, this statutory provision is inapplicable in the present case, because the burn sustained by the infant could have been caused by the intentional act of the father, as claimed, by the act of the mother, or by accident. Thus, additional proofs are required to establish a prima facie case.

In this regard, N.J.S.A. 9:6-8.46a(4) provides:

previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse and neglect.

The statue further provides that "any determination that the child is an abused or neglected child must be based on a preponderance of the evidence" and "only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46b.

We have held:

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Trial courts hear the case and see the witnesses, and they are in a better position to evaluate the credibility and weight to be afforded testimonial evidence. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999); Pascale v. Pascale, 113 N.J. 20, 33 (1988). On the other hand, deference is not appropriate if the trial court's findings are "so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007).

[New Jersey Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008).]

Moreover, we have faulted judges who failed to consider evidence undermining the judge's factual findings. New Jersey Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 175 (App. Div. 2005). And we have held in abuse and neglect hearings that "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 the [Division's] essential evidence by cross-examination." In re Cope, 106 N.J. Super. 336, 343 (App. Div. 1969). "'[W]here the focus of the dispute is not credibility but, rather, alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' the traditional scope of review is expanded." Matter of Guardianship of J.T., 269 N.J. Super. 172, 189 (App. Div. 1993) (quoting Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)).

We have observed that the "most effective types of corroborative evidence may be eyewitness testimony, a confession, an admission, or medical or scientific evidence." New Jersey Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003). In the present case, we have no such evidence. The only corroboration present is provided by caseworker Llanos who testified that, while in the family's bedroom during the removal of the child by DYFS, she queried the already frantically shaking mother in whispered tones whether "what your four year old told me earlier is true," and she received a non-verbal shake of the head that Llanos interpreted as indicating assent.

This non-verbal statement, which DYFS sought to offer for its truth as corroboration, could be considered hearsay. See N.J.R.E. 801(c) (defining hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.") However, N.J.R.E. 801(a) defines a statement for purposes of the article governing hearsay as "(1) an oral or written assertion or (2) nonverbal conduct of a person if it is intended by him as an assertion." In this regard, the up-and-down movements of the head of a deaf mute have been construed as a statement. State v. Simmons, 52 N.J. 538, 541 (1968), cert. denied, 395 U.S. 924, 89 S. Ct. 1770, 23 L. Ed. 2d 241 (1969). Similarly, an "affirmative nod" has been deemed a statement for Miranda purposes. State v. Jones, 308 N.J. Super. 15, 22-26 (App. Div. 1998). But in the present case, there is no evidence that the mother intended that the movement of her head, whatever it may have been, would be interpreted as a statement, particularly since, on all other occasions, the mother denied that the father was the perpetrator and either expressed no knowledge of how the burn had occurred, or provided scenarios that did not involve the father. Moreover, we note that the child not only stated that the father burned him, but also that the mother was present and was ineffectual in her efforts to stop the father. Nothing in the record suggests whether the mother's alleged acknowledgment of the truth of her son's statement referred only to the circumstances of the burn, referred to the mother's conduct, or referred to both. As a consequence, we find evidence of reliability, required by case law, to be absent here.

Even if we regard the mother's head movement as a reliable hearsay statement by her, reported by Llanos, indicating the mother's agreement to the truth of some or all of her son's statements to the school, DYFS and the police, we find no grounds for its admissibility as hearsay. In the circumstances presented, it is not, in large part, admissible as a statement offered against a party that is the party's own statement, admissible pursuant to N.J.R.E. 803(b)(1), since the admissibility of the statement is challenged by the father, not the mother. Nor is the "statement" admissible as a statement against interest, admissible pursuant to N.J.R.E. 803(c)(25), since it is offered against the father, not the mother. Additionally, we reject the law guardian's argument that the mother's non-verbal response constitutes an excited utterance, admissible pursuant to N.J.R.E. 803(c)(2), finding ample opportunity in the circumstances presented for deliberation or fabrication on the mother's part. State v. Branch, 182 N.J. 338, 366-67 (2005).

We note that that the trial judge did not regard Dr. Osei's determination that the burns were non-accidental to be corroborative. We agree. Although the doctor constituted an "affiliated medical . . . consultant[]" as contemplated in Cope, supra, 106 N.J. Super. at 343, and his report may have been admissible pursuant to Rule 5:12-4(d); see also Division of Youth & Family Servs. v. M.C. III, ___ N.J. ___, ___ (2010) (slip. op. at 23-27), there is nothing in the report that would suggest that the doctor made an independent determination, premised on scientific evidence, that the child's injuries were non-accidental. Instead, it appears that the doctor relied entirely on the statement of circumstances provided by the child. Thus the report was not corroborative of a non-accidental injury.

As a final matter, we note the failure of the trial judge to consider evidence undermining her factual finding that the father intentionally burned his four-year-old son as a form of excessive corporal punishment. In that regard, we note that there was no testimony in the record (other than the uncorroborated statements of the son) that the father ever utilized an iron, or that he used an iron on the morning in question. Indeed, the evidence suggested that such use by him would be unusual, since the mother ironed her own and the child's clothes, and the father had his clothes dry cleaned. Significantly, the mother consistently admitted to using the iron on the morning in question.

Further, there was no evidence to corroborate the fact that the child had arisen by the time his father left for work, and nothing impeached the father's testimony that he had left for work by 6:15 or 6:20 a.m. an hour at which few children are awake. As a final matter, substantial evidence of the mother's severe abuse and neglect of another child existed, together with evidence of her lack of fitness as a parent.

In summary, we find that DYFS failed to present a prima facie case of abuse and neglect on the part of the father in this case, having failed to corroborate the child's statements regarding the father's conduct with reliable, admissible evidence. Plain error has occurred. R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971).

 
Accordingly, we reverse the judge's finding of abuse and neglect by D.J. and order that D.J.'s name be removed from the Central Registry.

An in-camera interview was not requested by any of the parties or the court.

No objection to the hearsay nature of the documents was raised.

The mother was not confronted with that evidence.

While separated from his parents, the child suffered from encoporesis and enuresis, attributed to separation anxiety. He also contracted ringworm.

Both the Referral Response Report and supervisor Peters indicated this took place. At the fact-finding hearing, Llanos testified without further elaboration that the mother "was like, yes."

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

(continued)

(continued)

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A-4259-08T4

RECORD IMPOUNDED

April 13, 2010