DIVISION OF YOUTH AND FAMILY SERVICES v. K.P IN THE MATTER OF Kh.P a minor

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2562-10T1

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

K.P.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF Kh.P., a minor.

__________________________________

November 22, 2011

Submitted October 13, 2011 - Decided

Before Judges Axelrad and Ostrer.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-203-10.

Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer M. Kurtz, Designated Counsel, on the briefs).

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kendra Andrews, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor Kh.P. (Lisa M. Black, Designated Counsel, on the brief).

PER CURIAM

K.P. appeals from the Family Part's April 28, 2010 order, following a fact-finding hearing, determining that he abused his eight-month-old daughter Kh.P. by purposefully causing a spiral fracture to her humerus (the bone between the shoulder and the elbow) by throwing her to the floor. K.P. also appeals from the court's final order entered December 9, 2010, terminating the litigation and barring K.P.'s contact with the victim until he had undergone therapy and parenting education as recommended in a psychological evaluation provided to the court. We affirm.

I.

The court conducted a fact-finding hearing on March 19 and April 28, 2010, after the Division of Youth and Family Services (DYFS) filed a verified complaint in January 2010 for the care and supervision of Kh.P. and her half-sister, A.T. The complaint named as defendants K.P., T.C. (K.P.'s girlfriend and mother of Kh.P. and A.T.), and B.T. (father of A.T.). According to the evidence at the hearing, K.P. suffered the fracture to her humerus while she was alone in K.P.'s care for less than twenty minutes on November 25, 2009. K.P. and Kh.P. lived in an apartment in Newark with T.C. and A.T., who was two-and-a-half years old.

Late in the afternoon, T.C. left the apartment with A.T. to visit T.C.'s sister, who lived a few houses down the street, to borrow some videos. K.P. testified that before T.C. left the apartment, he had become upset that T.C. placed Kh.P. in a high chair because he had not purchased it. He testified that he insisted that T.C. remove the child from the high chair, which she did. K.P. testified that after T.C. left on the video errand, he nonetheless placed the child back in the high chair without strapping the child in. Less than a minute later, he claimed that he grabbed the child by her right side with his right hand, to lift her out of the high chair. He insisted that he did not grab her by the arm, but was able to grasp the fourteen-and-a-half-pound child by her torso with one hand. Moreover, he insisted that he faced the child as he grasped her on her right side with his right hand; in other words, he claimed he reached across the child as he lifted her out of the chair.

He asserted that after the child's foot caught the tray, and he lost his grip, the child fell to the floor on her side and began to cry. He stated he consoled the child, and ultimately placed her on a mattress on the floor. He claimed that he was unaware that the child had suffered a serious injury. Nonetheless, he decided to seek out T.C. down the street, leaving the eight-month-old child alone in the apartment on the floor mattress.

T.C. met K.P. in front of her sister's house and inquired where the baby was. K.P. answered that the child was in the apartment, but said nothing about a fall or injury. T.C. rushed to the apartment, and found her daughter asleep on the mattress. When she lifted her child, she began to whimper and then, as T.C. examined her daughter, the child's cries of pain alerted T.C. that the child had suffered a serious injury to her right arm.

When K.P. returned to the apartment, T.C. asked him what had happened. K.P. testified at the fact-finding hearing that he told T.C. that he had dropped the baby, but admitted that he did not say anything about attempting to lift her one-handedly out of the high chair. However, according to T.C., K.P. admitted that he threw the baby to the floor and the bed a few times, and then hit her with a pillow. After T.C. spoke to K.P., she called the police for assistance.

T.C. repeated K.P.'s admissions to a responding police officer, and a DYFS investigator, who both testified at the fact-finding hearing. The DYFS investigator testified that T.C. stated that after T.C. asked K.P. what had happened to the child, K.P. initially replied "[I]f you were here, you would know," and then told her, "Maybe I threw her a few times on the bed on the floor and hit her with a pillow." T.C.'s recitation of K.P.'s admissions was also reflected in the hospital's medical records, admitted in evidence. Defendant was arrested at the apartment and taken into custody.1 At the fact-finding hearing, K.P. denied that he admitted throwing his daughter.

Dr. Raksha Gajarawala, a pediatrician, testified that Kh.P. had suffered a spiral fracture, which usually occurs by twisting or applying torsional force to the bone. In her report, admitted in evidence, she stated that spiral fractures of the humerus are found most frequently in abused children. "The frequency of these fractures in abused children is readily explained: the arms offer a convenient 'handle' to the assailant as the infant is pulled, swung or shaken." She testified that it was unlikely that Kh.P.'s spiral fracture could have occurred by simply falling, or being dropped to the floor, as such an incident would not have provided the necessary twisting or torsional force.

The court also received in evidence a letter written by K.P. in which he set forth his version of the incident. Relevant to the court's ultimate order limiting K.P.'s contact with T.C.'s children, K.P. admitted prior instances of child neglect and domestic violence that were alleged in DYFS's verified complaint for care and supervision filed in January 2010. He admitted that in May 2008, he grabbed T.C. in the course of an argument, in the presence of her young sons (the boys primarily lived with their father). When the boys intervened to try to protect their mother, K.P. admitted he "simply pinned them to the ground" while informing them he did not intend to hurt their mother. He admitted that in June 2008, he left A.T., who was ten months old at the time, unattended in an illegally parked vehicle in New York City while he went into a restaurant to use the restroom. He remained in the restaurant so long that the car was towed, with the child inside, before he returned to the vehicle. The child was found unharmed hours later. He admitted that during an argument over his alleged infidelity in 2009, he pushed T.C. and bit her on her arm. He also admitted to tossing K.P. in the air and on the bed, to make her smile.

In his decision on April 28, 2010, Judge Stephen J. Bernstein found by clear and convincing evidence that K.P. abused Kh.P. N.J.S.A. 9:6-8.21(c)(4). Judge Bernstein found K.P.'s testimony to lack "any credibility." He disbelieved that K.P. picked up the child one-handedly by grasping the child by the side. He credited the testimony that K.P. admitted throwing the child. He also found persuasive Dr. Gajarawala's testimony that the nature of the fracture was consistent with abuse. The court entered a fact-finding order the same day.

In advance of hearing a motion to terminate the case on December 9, 2010, the court and counsel received the results of a psychological evaluation of K.P. that the court ordered in July 2010. Based on a clinical interview and various psychological tests, Andrew P. Brown, III, Ph.D. determined that K.P. was mentally challenged, scoring in the "mentally deficient" range of less than 70 IQ. He found the presence of antisocial behaviors, poor impulse control, aggression, poor insight and a narcissistic personality. He expressed concerns about K.P.'s ability to parent in the future, and recommended that K.P. attend a parenting skills course and participate in individual psychotherapy to acquire insight into the repetitive nature of his antisocial behaviors. He suggested that a neuropsychological assessment might clarify K.P.'s cognitive assets and liabilities. He advised against visitation and opined that the "[p]rognosis for parenting" was "guarded."

At the hearing on DYFS's motion to terminate the litigation, K.P. disclosed that he had entered a guilty plea to the criminal charge of child endangerment and was to be sentenced the following week. Although the details of the plea were not presented to the trial court, K.P. anticipated that he would remain incarcerated for another fourteen months.2

In addition to seeking termination of the case, DYFS sought entry of an order conditioning K.P.'s future contact with Kh.P. and T.C.'s other children upon compliance with Dr. Brown's recommendations. K.P.'s counsel did not oppose DYFS's application, acknowledging that K.P.'s "redress would be with [the] FD [docket]" by filing a non-dissolution complaint for parenting time. Although counsel stated that she had concerns with the psychological evaluation, she said she decided not to pursue an independent expert's evaluation in light of DYFS's decision to seek termination.

The court granted DYFS's application to terminate the litigation. The court found that T.C. had complied with all requested services and she retained legal and physical custody of the children. As for K.P., the court ordered:

a. There shall be no visitation (supervised or unsupervised) between [K.P.] and the children until [K.P.] makes appropriate FD application to the Court for visitation.

b. As per [K.P.'s] psychological evaluation dated 9-28-2010, before any contact between him and the children is allowed, [K.P.] shall first complete:

- parenting skills course

- individual psychotherapy to render insight into the repetitive nature of his antisocial behaviors and chronic legal involvement

- [K.P.] completes neuropsychological evaluation

- [K.P.] attends and completes anger management and DV counseling

- [K.P.] submits to CADC [Clinical Alcohol and Drug Counselor] assessment.

K.P. filed his appeal January 24, 2011 and raises the following issues:

I. THE TRIAL COURT'S FINDING OF ABUSE SHOULD BE REVERSED BECAUSE DYFS FAILED TO PROVE ABUSE BY A PREPONDERANCE OF THE EVIDENCE

A. K.P. CONSISTENTLY DENIED ABUSING THE CHILD, AND DYFS' OWN EXPERT ADMITTED THAT THE INJURY COULD HAVE OCCURRED IN THE MANNER DESCRIBED BY K.P.

B. DYFS' ENTIRE CASE RESTED UPON A PRE-TRIAL ALLEGATION BY T.C., WHO WAS JEALOUS AND ANGRY WITH K.P. AND WHO TESTIFIED AT TRIAL THAT SHE DID NOT EVEN BELIEVE THE ALLEGATION AND THAT SHE TRUSTED K.P. WITH HER CHILDREN.

1. T.C. TESTIFIED THAT SHE DID NOT BELIEVE K.P. HARMED THE CHILD AND THAT SHE TRUSTED K.P. WITH HER CHILDREN.

2. T.C. HAD A MOTIVE FOR FALSELY REPORTING THAT K.P. STATED THAT HE THREW THE CHILD: JEALOUSY.

C. DR. GAJARAWALA'S TESTIMONY DOES NOT PROVE ABUSE BECAUSE IT IS BASED ON T.C.'S STATEMENTS AND DEMONSTRATES THAT THIS TYPE OF INJURY IS FREQUENTLY THE RESULT OF AN ACCIDENT AND NOT ABUSE.

1. DR. GAJARAWALA'S TESTIMONY WAS NOT THE PRODUCT OF EXPERT MEDICAL ANALYSIS; IT WAS MERE REGURGITATION OF DYFS' AND T.C.'S ALLEGATIONS.

2. DR. GAJARAWALA'S TESTIMONY DEMONSTRATES THAT THE TYPE OF INJURY AT ISSUE IN THIS CASE IS FREQUENTLY THE RESULT OF AN ACCIDENT RATHER THAN ABUSE.

D. THE TRIAL COURT ERRONEOUSLY BASED ITS FINDING OF ABUSE UPON A MOTIVE THAT WAS NOT SUPPORTED BY ANY EVIDENCE INTRODUCED AT TRIAL.

II. THE TRIAL COURT'S TERMINATION OF THE LITIGATION AND SIMULTANEOUS ORDER THAT K.P. HAVE NO CONTACT WITH HIS CHILD UNTIL HE COMPLETES SERVICES AND SUCCESSFULLY LITIGATES AN FD MATTER VIOLATES K.P.'S DUE PROCESS RIGHTS.

By order dated June 20, 2011, we denied DYFS's motion to dismiss K.P.'s appeal on mootness grounds based on K.P.'s guilty plea.

II.

A.

In his first point on appeal, K.P. essentially argues, in light of various elements of testimony favorable to him, that the evidence presented at the fact-finding hearing was insufficient to sustain the court's finding. We disagree.

Our review of the trial judge's factual finding of abuse is limited. We must defer to the court's determinations
"'when supported by adequate, substantial and credible evidence.'" N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (abuse and neglect case) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). The trial court is best suited to assess credibility, weigh testimony and develop a feel for the case. N.J. Div. of Youth and Family Servs. v. M.C. III, 201 N.J. 328, 342 (2010) (abuse and neglect case). We extend special deference to the Family Part's expertise. Id. at 343; Cesare, supra, 154 N.J. at 413. However, we may disturb the judge's factual findings if they go "so wide of the mark as to be 'clearly mistaken and so plainly unwarranted that the interests of justice demand intervention and correction.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Formosa v. Equitable Life Assurance Soc'y, 166 N.J. Super. 8, 20 (App. Div.), certif. denied, 81 N.J. 53 (1979)).

In pertinent part, the statute defines an "[a]bused or neglected child" to mean a child whose parent or guardian:

(1) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health, or protracted impairment of the function of a bodily organ; (2) creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ. . . .

[N.J.S.A. 9:6-8.21(c).]

There was ample evidence in the record to support Judge Bernstein's finding that K.P. fractured Kh.P.'s humerus by non-accidental means, including significantly, K.P.'s own reported statements to T.C., his implausible explanation of how the injury occurred, his own testimony that he was upset that the child was placed in the high chair, and the expert testimony of Dr. Gajarawala that the type of fracture required twisting or torsional force, which was inconsistent with K.P.'s version. It was within the court's fact-finding function to minimize evidence highlighted by K.P. on appeal, such as: T.C. thought K.P. was a good father and found it difficult to believe he had purposely harmed Kh.P., and Dr. Gajarawala conceded that a spiral fracture could occur without abuse. Notwithstanding T.C.'s positive comments about her boyfriend, she stated to investigators and medical personnel, and testified in court, that K.P. admitted throwing Kh.P. Also, although Dr. Gajarawala conceded that spiral fractures of the humerus can be caused accidentally, she testified that the chance of that was slim in the case of an eight-month-old baby who could not walk, run, or jump on her own.

Moreover, even if defendant one-handedly grabbed his daughter out of the high chair, that would fall far short of an injury by "accidental means" under the statute. The focus of a Title 9 inquiry is on "the circumstances leading to the injury and the harm to the child." M.C. III, supra, 201 N.J. at 344. Thus, an intentional act that has unintended consequences is not considered "accidental" under the statute. Ibid. In M.C. III, the Court affirmed the trial court's finding of abuse where a father "intentionally grabbed the children and disregarded the substantial probability that injury would result from his conduct." Id. at 345. The same is true here. Lifting an eight-month-old out of a high chair with one hand around the torso created a substantial risk that the child would slip out of K.P.'s grasp and suffer serious injury.

Given the ample evidence in the record, we need not address whether defendant's plea to second degree endangering the welfare of a child, entered after the fact-finding hearing, foreclosed K.P.'s appeal from the finding of abuse. Neither the trial court, nor were we provided a transcript of K.P.'s allocution. However, we note that the judgment of conviction, which includes an assessment of $100, reflects the criminal court's apparent finding that defendant's crime "resulted in the injury" of Kh.P. N.J.S.A. 2C:43-3.1a(1).

B.

We perceive no due process violation in the court's order conditioning parenting time on K.P.'s compliance with treatment. The court was authorized to impose protections for the benefit of the child. N.J.S.A. 9:6-8.55. That is consistent with the goals of the statute. See N.J. Div. of Youth & Family Servs. v. J.D., 417 N.J. Super. 1, 21 (App. Div. 2010) ("[A] child's safety is the pervasive concern prompting the initiation of a Title 9 action."). K.P. did not object to entry of the order, which was supported by the psychological evaluation, the finding of abuse, and K.P.'s own admission of aggressive behavior and inappropriate parenting in the past. We reject K.P.'s argument that under N.J.S.A. 9:6-8.53, an order of protection may not be in place more than one year, barring an extension after a hearing. The one-year limit in N.J.S.A. 9:6-8.53b pertains to an order of supervision, not an order of protection, which has no prescribed duration. Rather, it may be made for a "specified time." N.J.S.A. 9:6-8.55. In this case, the time specified is when K.P. completes the prescribed treatment.

K.P. argues that the court's order deprives him, an indigent, of his right to counsel, since the dismissal of the Title 9 complaint terminates his representation in that case, and he will be without counsel if he files a non-dissolution case under an FD docket to obtain an order restoring contact with Kh.P. He argues that his due process rights are also infringed because he lacks the financial resources that allegedly will be necessary to obtain the required treatment. We are unpersuaded.

An indigent parent has a due process right to counsel when the State seeks temporarily to remove custody, or permanently to terminate parental rights. N.J. Div. of Youth & Family Servs. v. R.G., 397 N.J. Super. 439, 448-49 (App. Div. 2008), overruled in part on other grounds by N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382 (2009). However, K.P. was afforded counsel. The court's order followed a fact-finding hearing in which K.P. was represented throughout.

Moreover, DYFS was not obliged to provide services to K.P. since the danger to Kh.P. was remedied by her continued residence with T.C., her non-abusive mother, who maintained custody of Kh.P. while the Title 9 case was pending. Id. at 447. Particularly inasmuch as K.P. remained incarcerated for the year between his arrest and plea, and was then sentenced to a three-year term on a second-degree conviction, there was no reasonable opportunity for DYFS to provide services to K.P.

Finally, there was no showing that K.P. was unable to obtain the identified services. Therefore, it would be premature to consider any claim of a due process violation predicated on his inability to obtain the treatment upon which his visitation was conditioned. See N.J. Div. of Youth & Family Servs. v. S.S., 187 N.J. 556, 564 (2006) (courts should not consider constitutional issues "prematurely presented").

In sum, we discern no basis to disturb the court's order conditioning K.P.'s parenting time.

A

1 He remained in custody in lieu of bail on the related criminal charges throughout the Family Part's consideration of the matter.

2 According to the judgment of conviction included in the record before us, K.P. was sentenced on December 17, 2010 as if a third-degree offender to a downgraded prison term of three years, on a plea of guilty to endangering the welfare of a child, second degree, N.J.S.A. 2C:34-4(a).