NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. R.C.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1878-10T4

A-2630-11T2

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

R.C., J.C., Sr., and T.C.,

Defendants-Appellants.

__________________________________

IN THE MATTER OF

M.G.C.,

A Minor.

__________________________________________________________

A

June 6, 2013

rgued telephonically May 16, 2013

Decided

 

Before Judges Fisher, Waugh and St. John.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-220-10.

 

Ryan T. Clark, Designated Counsel, argued the cause for appellant R.C. (Joseph E. Krakora, Public Defender, attorney; Mr. Clark, on the brief).

Appellants J.C., Sr., and T.C., on the pro se brief.

 

Carla N. Livingston, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Livingston, on the brief).

 

Katherine J. Bierwas, Designated Counsel, argued the cause for respondent-minor (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Bierwas, on the brief).

 

PER CURIAM

After a two-day trial in this Title Nine action, Judge Arthur Bergman concluded that the child in question, M.G.C., who was born on October 3, 2009, was abused or neglected by his father, defendant J.C., Jr., the child's mother, defendant R.C., and the child's paternal grandparents, defendants T.C. and J.C., Sr. We affirm.

Our standard of review is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Because a judge's findings "are considered binding on appeal when supported by adequate, substantial and credible evidence," Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974), we only disturb factual findings when they are so manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); Cesare v. Cesare, 154 N.J. 394, 412 (1998); N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 112 (App. Div.), certif. denied, 180 N.J. 456 (2004).

Having heard and weighed the testimony of the Division's witnesses, including a medical expert, as well as the child's mother and grandparents, Judge Bergman rendered a written opinion in which he thoroughly found the facts necessary to support his determination that the child was abused or neglected by all defendants. With the entry of an order terminating the Title Nine action, the mother and grandparents appealed the finding of abuse or neglect.

The mother argues:

I. DYFS DID NOT PROVE ITS CASE IN ACCORDANCE WITH THE EVIDENTIARY REQUIREMENTS OF N.J.S.A. 9:6-8.46(a)-(b) AND THEREFORE THE COURT'S FINDING OF ABUSE AND NEGLECT WAS IMPROPER.

 

II. THE COURT'S FINDINGS ARE VOID FOR VAGUENESS AS THEY DO NOT CONTAIN THE DETAIL REQUIRED BY STATUTE AND R.C. IS ENTITLED TO DETAILED FINDINGS SO THAT SHE MIGHT EFFECTIVELY RESPOND ON APPEAL.

 

III. DYFS FAILED TO PROVE THAT R.C. FAILED TO "EXERCISE A MINIMUM DEGREE OF CARE" UNDER N.J.S.A. 9:6-8.21(c)(4)(b). THEREFORE, THE COURT'S FINDING OF ABUSE AND NEGLECT CANNOT BE SUSTAINED.

 

The grandparents argue numerous things in their pro se brief, which is not organized in accordance with our court rules. They appear to argue that a finding of abuse or neglect as to them cannot be sustained: in light of the mother's testimony; because the Division's investigation was inadequate; and because the evidence did not warrant a finding against them. We find the mother's and grandparents' arguments to be of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.

The evidence upon which the judge relied demonstrated that the child was brought to an emergency room on March 23, 2010, with a right-sided skull fracture. The hospital referred the matter to the Division, which conducted an investigation and learned from hospital personnel that the child had also suffered non-displaced fractures of clavicle bones and that the child tested positive for bilateral retinal hemorrhages. The Division also sought information from the parents, as well as the child's paternal grandparents, who cared for the child when the parents were unavailable or working. The mother gave a statement that she, her husband and the grandparents all observed that the child was sensitive to being picked up under his arms during the prior month. None of them, however, sought medical care for the child.2 The mother had also noticed that the child had a red spot on his eye for a week but she never took him to a doctor and was satisfied there was no problem when the spot dissipated on its own accord. All appellants denied the child was injured while in their care and that, other than the tenderness under the arms and the spot on his eye, they observed nothing unusual.

The judge relied on the Division's proofs, particularly those provided by the Division's medical expert, to conclude that the child "suffered grievous, multiple injuries." The judge found the child suffered bilateral subdural hemorrhages, which were revealed by a brain MRI taken on March 25, 2010, and that these injuries "were of different ages, meaning that [the child] had been injured multiple times." The judge also relied on the expert's testimony that the clavicular fractures "were of different ages when compared with the skull fracture." In addition, the judge found that none of the parties had provided a credible accidental cause for any of these injuries,3 thus leading to his conclusion, well supported by the expert's testimony, that the injuries were consistent with non-accidental physical abuse on multiple occasions.

As for the evidence provided by the child's mother and grandparents, the judge made the following finding:

The [c]ourt is not convinced that the testifying [defendants] have told the whole truth about their knowledge of [the child's] injuries. It defies both logic and human nature that not one of these three individuals, the baby's mother, grandmother and grandfather asked the question of the father initially which is "what happened to [the child]?" Even after learning that among other injuries [the child] had suffered a fractured skull, and having been advised by [hospital personnel] that it could not have occurred as a result of either stopping short on the Garden State Parkway or the baby having its diaper changed on the changing table, again not one of these three individuals would ask the father what happened.

 

The judge also determined, as a basis for further rejecting defendants' credibility, that "the time lines and the events as described by the parents and paternal grandparents at the hospital differ from the testimony in court, even among the parties who testified in the presence of the other[s] in court."

After applying the legal principles that define what constitutes abuse or neglect, as well as the res ipsa loquitur principles outlined and applied in In re D.T., 229 N.J. Super. 509 (App. Div. 1988), among other decisions, the judge concluded that he "heard no credible evidence to explain any accidental means of injury, and none of the defendants have provided any evidence to exclude them as possible perpetrators." Accordingly, Judge Bergman concluded, by a preponderance of the evidence, that the Division demonstrated the child was severely abused on multiple occasions while in the care of one or more of the defendants:

the injuries . . . are severe, willfully inflicted, and are not the types of injuries one would expect unless his caregiver either inflicted them or failed to protect him from their infliction. These defendants were the sole caregivers, and the [c]ourt is convinced that all of the injuries occurred while in the care of one of them. It is not the Division's burden . . . to prove more than that.

 

The judge appropriately applied D.T. in drawing this conclusion. We affirm substantially for the reasons set forth in Judge Bergman's thoughtful opinion.4

The judge also considered the Division's claim that defendants engaged in medical neglect "for failing to have [the child] examined by a physician when he exhibited signs of distress in February." The judge found that defendants' "statements and testimony surrounding his clavicular fractures are inconsistent, and do not seem credible." Our standard of review requires deference to this credibility finding. Moreover, the evidence, as well as the inferences that might reasonably be drawn, fully support the judge's determination

that each of these defendants was well aware of the injuries suffered by [the child] at the hands of his father, and chose to avoid the truth in order to forestall the consequences of J.C.[,] Jr.'s actions. They should have, but did not, seek medical attention for [the child]. This is medical neglect. It also permitted the conditions to continue that would result in the physical abuse suffered by [the child] a month later.

 

Unfortunately, by failing to acknowledge the truth, and failing to act in [the child's] best interests after the first injuries, each of them has failed [the child]. That he was more grievously injured in March than in February only demonstrates the inability of [the mother] and the paternal grandparents to confront the harm that faces [the child].

 

In deferring to the judge's weighing of the evidence and his credibility findings, as well as the expertise of the Family Part bench, see Cesare, supra, 154 N.J. at 412, we reject defendants' arguments that these findings were against the weight of the evidence or otherwise insufficient to support the finding of medical neglect.

Title Nine was enacted "to provide for the protection of children . . . who have had serious injury inflicted upon them by other than accidental means." N.J.S.A. 9:6-8.8. As explained in Title Nine itself, this legislation was intended "to assure that the lives of innocent children are immediately safeguarded from further injury and possible death and that the legal rights of such children are fully protected." Ibid. See G.S. v. Dep't of Human Servs., 157 N.J. 161, 171 (1999). We, thus, find nothing unfair about the judge's conclusion that defendants failed to adequately exonerate themselves from the accusation of abuse or neglect. If the application of the existing standards seems harsh, we must not forget the goal is the protection of children not abusers.

Affirmed.

1 Effective June 29, 2012, the Division was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.

2The grandmother works in a doctor's office.

3The mother reported to the Division that her husband had provided different explanations for the child's injuries, including the child's striking of his head on the edge of a changing table and, later, a need to swerve and slam on his brakes when cut off while driving the child on the Garden State Parkway.

4Defendant R.C. alluded in her argument in this court to the fact that J.C., Jr., pleaded guilty to a criminal offense regarding the child at some time after the judge's findings that are being reviewed here. Because the judgment of conviction was not before the trial judge, it cannot form the basis for our questioning the judge's decision. Our decision is based solely on the evidence that the judge considered. See Donnelly v. Donnelly, 405 N.J. Super. 117, 130 n.6 (App. Div. 2009). To the extent J.C., Jr.'s conviction may tend to negate any or all of the judge's findings, defendants may certainly seek relief from the order under review by way of a timely application pursuant to Rule 4:50.