NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. M.F.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3839-12T1

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

M.F.,

Defendant-Appellant,

and

M.P. and C.R.,

Defendants.

IN THE MATTER OF M.P. and K.R.,

Minors.

September 16, 2014

Submitted September 9, 2014 Decided

Before Judges Reisner and Haas.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FN-08-148-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Christine B. Mowry, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jaime Millard-Tindall, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors M.P. and K.R. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant M.F. appeals from a February 26, 2013 fact finding order determining that she abused or neglected her infant daughter, K.R., in connection with injuries the child sustained while defendant and the child's father, C.R., were caring for her.1 We affirm, substantially for the reasons set forth in Judge Timothy W. Chell's thorough written opinion dated February 25, 2013.

The evidence was addressed at length in the trial judge's opinion and need not be repeated here in the same level of detail. To summarize, the parents brought K.R. to the emergency room on March 21, 2012, with a broken arm. The father explained to hospital personnel that as he was carrying the baby in his arms, he tripped and began to fall, and he grabbed her arm to keep from dropping her. The father stated that, as he did so, the baby's arm snapped. Hospital X-rays, however, showed that the child had a broken leg bone (femur) as well as a broken arm (humerus). Because child abuse was suspected, additional X-rays and a bone scan were performed on April 11, 2012. Those tests revealed multiple healing rib fractures on both sides of the baby's rib cage.

The Division of Child Protection and Permanency (Division) and the Law Guardian presented expert witness testimony which the trial judge found credible. The experts, Dr. Philip Scribano and Dr. Elizabeth Hodgson, testified that the child's leg and rib fractures were consistent with abuse, not accident. As Dr. Hodgson explained, "this is a baby who at 11 to 14 weeks of age has had more boney trauma than any of us have had in our lifetime and all of this is inflicted trauma." The experts also explained in considerable detail why these were not the sorts of injuries that would have occurred during the child's hospital treatment. The doctors further testified that the child had no medical conditions that would make her bones easily breakable.

According to Dr. Scribano, the father was specifically asked whether he might have squeezed the child's ribs in the course of trying to keep her from falling. The father said he did not. The father also told hospital personnel that the child's leg was not involved in the falling incident. Neither parent testified at the fact finding hearing, and they presented no expert testimony to rebut the State's proofs.

In a comprehensive twenty-nine page opinion, Judge Chell gave "great weight" to the experts' credible testimony. Based on that testimony, as well as the hospital records, the judge found that the Division proved by a preponderance of the evidence that the child was abused and neglected by her parents. N.J.S.A. 9:6-8.21(c).2 In reaching that conclusion, the judge considered N.J.S.A. 9:6-8.46(a)(2), which provides that

proof of injuries sustained by a child . . . of such a nature as would ordinarily not be sustained . . . except by reason of the acts or omissions of the parent or guardian shall be prima facie evidence that a child of . . . such person is an abused or neglected child[.]

Judge Chell concluded that "the leg fracture and rib fractures resulted from significant inflicted traumas," not caused by accidental means and that they did not occur at the hospital. Citing New Jersey Division of Youth & Family Services v. J.L & T.L., 400 N.J. Super. 454 (App. Div. 2008), the judge reasoned that the evidence was sufficient to require the parents to come forward with some evidence to rebut the Division's prima facie case, although the burden of proof remained with the Division. He found that defendants failed to produce any evidence, and that the Division carried its burden of proving child abuse and neglect.

On this appeal, M.F. raises the following points for our consideration:

POINT I

THE EVIDENCE IS SO LACKING, THE FINDINGS OF FACT SO WIDE OF THE MARK, AND THE CONCLUSIONS OF LAW SO UNSUPPORTED THAT THE DECISION THAT M.F. ABUSED [K.R.] UNDER N.J.S.A. 9:6-8.21(c)(4)(b) IS NOT DUE DEFERENCE.

POINT II

THE TRIAL COURT ERRED WHEN IT EMPLOYED BOTH TRADITIONAL AND CONDITIONAL RES IPSA LOQUITUR AFTER DECIDING THAT M.F. ABUSED [K.R.] WITHIN THE MEANING OF N.J.S.A. 9:6-8.21(c)(4)(b), PARTICULARLY WHEN THE STATE COULD NOT MAKE EVEN A PRIMA FACIE CASE THAT THE PARENTS WERE RESPONSIBLE FOR [K.R.] WHEN THE LEG AND RIB INJURIES OCCURRED.

POINT III

THE TRIAL COURT'S ORDER DETERMINING BY CLEAR AND CONVINCING EVIDENCE THAT M.F. ABUSED AND NEGLECTED [K.R.] IS ERROR.

Having reviewed the record, we conclude that defendant's arguments are not supported by the evidence and do not accurately reflect the judge's opinion. We do not construe the judge's decision as shifting the burden of proof to defendants but as shifting to them the burden of producing evidence in response to the State's prima facie case of child abuse. See N.J.S.A. 9:6-8.46(a)(2).

In light of the State's unrebutted medical testimony and documentary evidence, we find no basis to second-guess the judge's factual findings. See N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010). Defendant's arguments are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E). As previously noted, we affirm for the reasons stated in Judge Chell's opinion.

Affirmed.

1 The fact finding order was amended on October 7, 2013 to correct a clerical error. On the February 26, 2013 order, a box was checked indicating that the trial judge applied the "clear and convincing" standard of proof. The October 7 amended order corrected that notation to indicate that the standard of proof was by a preponderance of the evidence. The correction was consistent with the trial judge's opinion, which clearly stated that he was applying the preponderance standard. We deem the notice of appeal amended to encompass the October 7 order.

2 The father, C.R., did not appeal from the judge's decision.