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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-0352-12T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

R.D. and S.W.,

Defendants-Appellants.

_______________________________

IN THE MATTER OF A.W., Z.W.

and R.D.,

Minors.

 

_______________________________

January 2, 2014

 

Submitted November 20, 2013 - Decided

 

 

 

 

Before Judges Lihotz, Maven and Hoffman.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FN-15-175-10.

 

Joseph E. Krakora, Public Defender, attorney for appellant R.D. (Janet A. Allegro, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant S.W. (Cecilia M.E. Lindenfelser, Designated Counsel, on the brief).

 

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

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Todd Wilson, Designated Counsel, on the brief).

 

PER CURIAM

In these appeals, consolidated for the purpose of sharing transcripts and filing a single appendix, R.D. (Rafael) and S.W. (Sara) appeal from a January 11, 2011 order finding their infant son R.D. (Raymond)2 was an abused child; and a March 22, 2012 order terminating the protective services litigation, following the commencement of guardianship proceedings. In their separate appeals, defendants urge reversal, arguing the findings of abuse are generally unsupported by the weight of the evidence presented and because the trial judge misapplied the burden of proof. We disagree and affirm.

The facts are taken from the trial record. In addition to Raymond, Sara is the mother of two older children Alex, born in 2006 and Zan, born in 2008, whose father, Sara's former husband, was joined in the litigation for dispositional purposes only. Raymond's birth and delivery in 2010 were unremarkable. Upon discharge, he was released to defendants' care.

When Raymond was ten days old, he was rushed to Southern Ocean County Hospital (SOCH). Defendants explained they noticed Raymond was lethargic, not eating, and displayed "shaking activity" over the preceding two days. They denied the infant was exposed to trauma. Upon admission to SOCH, Raymond experienced two, thirty-second seizures.

A computerized tomography scan (CT scan) revealed "a large subdural hematoma in the left middle cranial fossa," extending along the left temporal region of Raymond's brain. Given the presence of multiple areas of hemorrhage, the radiologist listed non-accidental trauma as a differential diagnosis, but recommended a clinical correlation to discern the cause of the injury.

Later that day, Raymond was transferred to Jersey Shore University Medical Center (JSUMC), where a second CT scan confirmed the left temporal hemorrhage. The medical staff administered phenobarbital, an anticonvulsant, to prevent further seizures. The treating JSUMC neurosurgeon concluded Raymond had an intracranial bleed, secondary to possible arteriovenous malformation (AVM),3 but could not rule out the possibility of non-accidental trauma. Raymond was transferred to the neonatal intensive care unit at Children's Hospital of Philadelphia (CHOP) for neurosurgical management.

At CHOP, a brain MRI and a Magnetic Resonance Angiogram (MRA) scan were conducted. Medical personnel confirmed the bleeding in the left temporal region of Raymond's brain and discovered retinal hemorrhaging in his eyes. Attending physicians reviewed the pattern of injury and bleeding. Also, CHOP's Suspected Child Abuse and Neglect (SCAN) team conducted an examination. The conclusion reached following these examinations was Raymond's injuries were "not consistent with non-accidental trauma," rather "[t]he etiology of his bleed [wa]s presumed ruptured AVM, [even] though no evidence of [an] AVM was seen on a brain MRI." The testing radiologist noted, however, that small AVMs may not be seen on MRA images due to the adjacent hemorrhaging in the left temporal lobe.

During Raymond's CHOP hospitalization, extensive bone x-rays were taken, which found no mineralization or any evidence of acute or healing fractures. Further, Raymond suffered no additional seizures. A stroke conference was held to review all of Raymond's test results, which concluded he had a hemorrhage as a result of an AVM.

Raymond's discharge was delayed slightly because defendants had difficulty traveling to Philadelphia and CHOP required they complete a pre-discharge, twenty-four hour training session to ensure their ability to administer Raymond's seizure medication, perform CPR, and otherwise tend to his medical needs. Ultimately, defendants completed the training and Raymond returned home on May 5, 2010.

While defendants' training was pending, CHOP, concerned because defendants had not visited Raymond in days and had not communicated the reason for their absence, issued a referral to the Division. Vanessa Sicilia, a Division caseworker, along with Laureen England, a nursing consultant, arranged to visit defendants and Raymond on May 6. During the visit, Raymond appeared alert, clean, and well-dressed and was breathing fine on his own. Sicilia reported defendants were "very appropriate" with Raymond, and observed no safety hazards or concerns. Sara attended Raymond's follow-up pediatric appointment on May 7, during which no problems were noted.

Sicilia and England returned to defendants' home on May 10 "to provide education and reinforcement with respect to the baby's medical condition and necessary follow up per discharge instructions from CHOP." They arrived at 3:00 p.m. and Sara immediately sought advice regarding Raymond's difficulty breathing. England examined the baby and found him in acute respiratory distress. She gave Sara her cell phone to call 9-1-1 and attempted to relieve Raymond's distress, fearing he might die. When police and paramedics arrived, they administered oxygen and rushed Raymond to SOCH. Once stabilized, Raymond was transferred to JSUMC.

After the incident, England observed that Sara seemed fearful and very upset, whereas Rafael stood in a corner appeared less upset and disengaged. When England asked how long Raymond had been experiencing breathing problems, Rafael responded the breathing difficulties started in the morning. Sara, however, explained she took the baby to an ophthalmologist that morning and he was fine.

A battery of tests confirmed the temporal lobe bleeding discovered in April. Additionally, new injuries were discovered, including retinal hemorrhaging with possible brain stem involvement, softening of the brain with significant loss of functioning, and at least thirteen fractures of ribs two to nine on both the left and right sides.

Raymond was evaluated by the JSUMC Child Protection Center director and Steven Kairys, M.D., a board-certified pediatrician and Chairman of Pediatrics at JSUMC. Dr. Kairys concluded Raymond's rib fractures were "new and not present while at CHOP" or visible on the April 4, 2010 chest x-ray. He estimated the injuries occurred between Raymond's CHOP discharge on May 5 and his May 10, 2010 JSUMC admission. Dr. Kairys determined the fractures were the type typically caused by squeezing the ribs and shaking the baby violently. He concluded these new rib injuries, along with the increased retinal hemorrhage and liver inflammation, were "highly concerning for physical abuse." Based on this finding, all three children were removed from defendants' home and placed in a Division resource home.

Thereafter, Raymond underwent surgeries to drain the pockets of fluid from his brain and to place bilateral drains and shunts in his head. He suffered acute and permanent brain damage, which would likely prevent normal development, and his neurological prognosis remained bleak. He was transferred to Weisman Children's Rehabilitation Hospital (WCRH), followed by Voorhees Pediatric Facility (VPF) for long-term care, where he continues to reside.

Defendants offered no explanation for the cause of Raymond's injuries. Caseworker Richard Guadagnino spoke to Rafael with the police present. Rafael appeared shocked, as he cried and denied any knowledge of how Raymond sustained such injuries. Sara, also very upset, said she did not know how Raymond's ribs were broken. Defendants confirmed they were Raymond's sole caregivers since his discharge from CHOP and stated they were always home. Separately, each affirmed neither one of them shook or harmed the baby.

In a subsequent interview with a Division caseworker, Sara recounted the events from the evening before Raymond's hospitalization. She was sleeping while Raymond was in his "bouncer seat" in the living room with Rafael, who was lying on the couch, not playing video games. Sara awoke when she heard Raymond crying but Rafael stated he would give Raymond a bottle, so she returned to bed. Sara did not see Rafael shake Raymond to stop him from crying. She also denied any substance abuse issues or criminal history.

Rafael also denied prior criminal involvement or substance abuse. Additionally, he rejected allegations of domestic violence, stating he and Sara merely argued. Rafael described his conduct on the night in question, explaining he noticed Raymond was not breathing and picked him up "by putting his thumbs around his arm pits and his hands supporting his neck and upper back" then "rocked/swayed" him until he awoke. He denied shaking or squeezing Raymond's ribs.

The Division arranged for Dr. Kairys to examine Zan and Alex. Dr. Kairys reported Alex's examination was unremarkable; however, Zan's chest x-ray disclosed four healing rib fractures, estimated to be between two and six months old, which he found highly suspicious for physical abuse. When Guadagnino interviewed Sara regarding Zan's injuries, she "hysterically cried and ran out of the room because she became sick." After calming down, Sara stated Zan never complained of any pain and she had no idea he had been hurt. Although Sara denied knowing how Zan could have been injured, she began blaming Rafael. In his interview, Rafael similarly denied knowledge of Zan's injuries, and was unable to state whether Sara had ever hurt her son.

Following a criminal investigation, Rafael was arrested, charged with aggravated assault and endangering the welfare of a child, and held in jail.4 The Division filed a complaint seeking custody, care, and supervision of the children as a result of defendants' alleged abuse or neglect. The Division's request pursuant to N.J.S.A. 9:6-8.21 to -8.73, N.J.S.A. 30:4C-12, and Rules 5:12-1 to 12-6, was granted pending final determination.

After the complaint was filed, the Division continued to provide services to defendants and the children. Craig Nelson, the Division permanency worker charged with implementing those services, explained that Sara failed to appear for scheduled substance abuse evaluations, and, at times, he could not contact her. During a supervised visit in August 2010, Nelson requested that Sara provide a urine sample, but she declined. She finally submitted to a test sample on September 10, 2010, which was positive for marijuana. On September 28, she again tested positive for marijuana, this time at a higher concentration. The Division also learned Sara was incarcerated for two days earlier in September because of outstanding warrants for shoplifting and multiple traffic offenses.

The court held a factfinding hearing over seven days between November 1 and 19, 2010. The Division called caseworkers who were involved with the family and three medical experts, who focused on the nature, extent and cause of the reported injuries to Raymond and Zan. The experts were Dr. Kairys; Richard Markowitz, M.D., a board certified radiologist at CHOP; and Robert Zimmerman, M.D., a board certified pediatric neuroradiologist affiliated with CHOP. Defendants did not testify when called by the Division.

Rafael called several family members and a former girlfriend, who related their observations of Rafael's care of the children and offered their opinion on his character. Additionally, he presented expert testimony from Janice Ophoven, M.D., a pediatric forensic pathologist; David Ayoub, M.D., a board certified radiologist, who reviewed the children's x-rays, scans, and medical records and testified regarding the diagnosed injuries; and Gregory Gambone, M.D., who provided his assessment of Sara's psychological functioning, parenting capacity, risk for future violence and mental health needs.

Based on the divergent opinions among the experts as to the cause of Raymond's injuries, we detail the expert testimonial evidence. However, because the Division has not challenged the trial judge's conclusion that Raymond's initial brain injury was not shown to have resulted from abuse, we will only briefly address that evidence, concentrating instead on evidence regarding the baby's rib fractures. Finally, our discussion does not mirror the order of presentation of these witnesses at trial.

The Division offered Dr. Zimmerman's testimony, which centered on Raymond's head injuries and his brain and retinal bleeding. He found the April 3 and 4 brain CT scans were consistent with "blunt force trauma to the left side of the head." He opined the injuries resulted from an acute trauma or blow to the head, which he described as an "impact injury," unlikely to have occurred from shaking or by accident.

Dr. Markowitz, a radiologist experienced in aspects of child abuse, was called by the Division to relate his review of all three children's chest, abdomen, and skeletal x-rays. He discussed Raymond's and Zan's rib fractures, which he opined resulted from abuse.

Further, Dr. Markowitz found the x-rays from Raymond's first hospitalization revealed his bones were normal in shape and density. Specifically, an April 4 chest x-ray and an April 10 skeletal survey showed no fractures or evidence of bone disease. The May 10 x-rays taken at JSUMC, on the other hand, showed a change in the shape of Raymond's ribs, with anterior rib fractures in the lower part of his chest and additional abnormalities in the posterior ribs. Raymond suffered thirteen fractures to his anterior ribs and nine fractures to his posterior ribs. Subsequent chest x-ray images, administered on May 12, showed no signs of healing, leading Dr. Markowitz to conclude they were "relatively fresh fractures, . . . probably within a week to ten days of age."

When asked whether Raymond's injury could have occurred between April 20 and May 5, 2010, while at CHOP, Dr. Markowitz responded:

Well, I can only say that they were not there on 4/10 and they were there on 5/10. So I don't know exactly when they occurred in between that time, but my guess based on . . . the acuteness of how they look is that . . . they look like they occurred closer to 5/10 than to 4/10.

 

In other words, they're probably within a week of the 5/10 date. Not like 4/11 or 4/12. I think that would be too old. So I think they occurred closer to the 5/10 date than the 4/10 date, but I can't give you a specific date.

 

Dr. Markowitz explained the pattern of fractures, as depicted on the x-rays, was indicative of a "grab and squeeze" injury from the application of "strong compressive force" to the baby's chest. He particularly noted the posterior rib fractures were quite characteristic of non-accidental trauma in a baby and such fractures "don't occur really spontaneously or from almost any other cause" but were "fairly typical" in cases of infantile child abuse. He elaborated:

[I]f you can imagine the baby's chest is sort of an oval, as you put your hands around the chest, if you're facing the child, your fingers come around and they go on either side of the spine, and then your thumbs come around the front.

 

And as you squeeze, you're exerting a force right along parallel to the spine in the back where the ribs attach. With your thumbs, you're exerting a force on the anterior chest. And so it -- the ribs are an arc, and so they do have a certain amount of give, but if you squeeze hard enough, you will snap them. And when you're snapping them is at the point of pressure where your fingers are in the back and where your thumbs are in the front.

 

In his opinion, Raymond "was grabbed by the chest, around the chest and shaken or squeezed forcibly, with enough force to . . . snap these little ribs."

Dr. Markowitz rejected the defense experts' opinions that the fractures could have resulted from a bone disease such as rickets, a condition causing abnormal bone mineralization typically due to Vitamin D or calcium deficiencies. In his review of the medical records, he found "nothing to indicate that [Raymond] has a nutritional deficiency or a growth abnormality." Dr. Markowitz explained patients with abnormal bone development or nutritional deficiencies due to bone disease from calcium loss have bones that appear "washed out[,] . . . thin, and demineralized" as a result of the loss of calcium. Also, in ribs, the anterior ribs typically break at their ends where mineralization accumulates. Raymond's fractures were along the posterior ribs, a site Dr. Markowitz had never observed resulting from bone disease and he found no identifiable signs of bone abnormalities from rickets.

Dr. Markowitz also disagreed with the suggestion Raymond's rib injuries occurred along the growth plate. Further, he opined it would not be possible for a stroke or seizure activity to cause the rib fractures Raymond sustained. He stated he had never examined a young child who suffered a rib fracture after a seizure, asserting there would be insufficient blunt force to cause the injury. He also found the absence of bruising was not surprising, because "[v]ery often you see absolutely no indication at all on the skin."

On cross-examination, Dr. Markowitz conceded an x-ray would not necessarily show the presence of rickets, and admitted a chest radiograph "alone can never fully exclude bone fragility." However, when questioned by the trial court, Dr. Markowitz insisted had Raymond suffered from rickets or a metabolic bone mineralization abnormality severe enough to cause what he called "that degree of fracture," the x-rays taken in April would have revealed such problems. He explained children with rickets, bone disease, or other degenerative problems have very abnormal bones, which was not the case with Raymond.

Additionally, Dr. Markowitz reviewed Zan's May 13 and May 28, 2010 x-rays. He confirmed Zan suffered fractured ribs found in a later stage of healing. Zan's remaining bones were normal.

Although it was more difficult to date these injuries, Dr. Markowitz estimated the fractures occurred between two and six months prior to discovery. He opined, within a reasonable degree of medical certainty, Zan's fractures were not accidental, but rather the product of inflicted injury. He had "never seen accidental fractures in th[e] location" observed on Zan, in a child his age. In his opinion, the pattern of fractures likely would have required a blow to the back and would not have resulted "from normal toddling around, playing around, rolling over, [or] even falling off a couch" because "the part of the ribs . . . are pretty well padded with muscle. They're not very well exposed, so it would require some sort of direct force applied to that area in order to break those ribs . . . and nothing else."

Rafael presented medical experts whose opinions conflicted with those of the Division's experts. Dr. Ophoven testified Raymond's initial April 2010 hospitalization was precipitated by a "devastating stroke" suffered shortly after birth, as diagnostic imaging revealed a huge bleed in the core of Raymond's temporal lobe. By the time Raymond arrived at CHOP, there was significant swelling in the brain and, as a consequence of the stroke, there was bleeding into his eyes. "[T]he bleeding was inside out. With trauma, it's the force going from out in." Noting the most vulnerable body part harmed when a baby suffers shaking is the neck, she stated hospital records from April 4, 2010, through Raymond's discharge on May 5, 2010, include no diagnosed neck or spinal cord injury. In Dr. Ophoven's opinion, no medical professional could conclude, to a reasonable degree of medical certainty, Raymond's brain hemorrhaging was the result of inflicted trauma or abuse.

Addressing Raymond's rib fractures, Dr. Ophoven attributed the injuries to bone abnormalities, a cause she asserted was excludable only if ruled out by testing. In her opinion, because "the underlying strength and metabolic status of the bones" was not tested, "it is not scientifically possible to determine [whether the fractures] were the consequence of violence or child abuse." She suggested Raymond's bones may have been in such a weakened condition that normal handling of the child caused the fractures. In her view, it was necessary to determine whether Raymond's bones were normal, by running a Vitamin D profile, reviewing Vitamin K and C levels, and looking at the parathyroid hormone, before concluding that he was abused.

Dr. Ophoven stated Sara's failure to receive full prenatal care created a "high risk pregnancy." Prenatal blood tests revealed Sara had low calcium levels and high alkaline phosphatase levels,5 a combination she found indicative of a Vitamin D deficiency. The Vitamin D deficiency coupled with low calcium levels could result in abnormalities in the newborn's growth plate, with problems arising when the baby reached approximately two months of age. Dr. Ophoven acknowledged the suggested tests would not conclusively show bone fragility and admitted Raymond's medical records revealed normal calcium and alkaline phosphatase levels. Nevertheless, she rejected that these results meant Raymond's bone metabolism was normal.

When questioned by the court, Dr. Ophoven emphasized the medical evidence was insufficient to conclude Raymond's rib fractures were the result of trauma or abuse, although such a possibility could not be excluded. She expanded her opinion stating Raymond's fractures

were all in exactly the location at the growth plate which is exactly the location where you have abnormalities with metabolic bone disease.

 

In kids who have classic multiple rib fractures from abuse, you see fractures on the sides. You see fractures in the middle of the back. You see fractures in spots all over. I mean I've seen kids with 20 [to] 30 rib fractures. But it looks like they've been shot with a pellet gun as opposed to this nice, smooth uniform abnormality right at the growth plate. That's that's pretty strange for fractures and to me would immediately have triggered an endocrinologist and a metabolic bone workup.

 

Dr. Ophoven further disagreed with the view Rafael's handling had harmed the child, asserting "swaying" in the way he described would not have generated enough force to cause the rib injuries shown in the x-rays. Likewise, she insisted the rib fractures were not caused by crushing or squeezing, stating:

If these ribs were all broken, front and back, with a massive crush, you're gonna [sic] have to alter the shape of the chest so much that it is incomprehensible that you wouldn't see something in the chest or the heart. That's why this particular pattern of symmetry along the entire length of all of these ribs, the same on both sides involving every rib, raises the question of something wrong with the rib rather than this being a massive blow to the chest.

 

Dr. Ophoven further supported her opinion that Raymond's fractured ribs did not result from abuse by Rafael, by noting no evidence of internal injury to Raymond's organs or external bruising because "if you're gonna [sic] have enough pressure to break all the ribs, it's hard to imagine that you won't have enough pressure to show a mark or something."

Dr. Ayoub also addressed the rib fractures suffered by Raymond and Zan. In his opinion, the configuration, location, and number of Raymond's fractures were not characteristic of injuries caused by abuse and leading him to the differential diagnosis of metabolic bone disease or rickets. He found Zan's injuries too old to allow a conclusive determination of their cause.

Dr. Ayoub concurred Raymond's fractured ribs appeared to be relatively recent, "within ten days of age," as the April 4 x-rays did not reveal any fractures. However, he disagreed the films did not show evidence of bone abnormalities. He identified signs he found of degenerative or metabolic bone disease.

First, Dr. Ayoub pointed to a bulbous configuration located on an anterior rib, as evincing rickets, bone disease, or nutritional deficiency, stating the bulbous mass was

due to overgrowth of the cartilage and the cartilage is invisible on an x-ray, and the basic problem with rickets is that you're unable to mineralize cartilage precursor. Bone lengthens. In the case here in the ribs it lengthens by creating cartilage first and then it mineralizes it, which allows you to see it obviously on an x-ray. In the ricketic situation you can't mineralize, put salt into that cartilage. So what happens is the cartilage continues to grow and it overgrows and it's that overgrowth which, which deforms the end of the bone and it widens it or cups it and it becomes palpable.

 

However, the most accurate test to confirm rickets, a bone biopsy, was not performed. Second, he identified dark bands on certain bones like the tibia and an abnormality of the trabecular bone, which he stated were signs of metabolic bone disease and evidence of "healing rickets." Finally, he suggested phenobarbital, administered while Raymond was hospitalized at CHOP in April, negatively impacted the infant's bone health because the drug affects Vitamin D metabolism.

Refuting Raymond's injuries stemmed from abuse, Dr. Ayoub explained the x-rays depicted "a pretty remarkable straight line configuration of these fractures" and agreed with Dr. Ophoven that the number of fractures in the front and back ribs was inconsistent with a squeeze or grab. He believed Raymond's fractures, as shown on the May 13, 2010 films, resulted from pulling up and down internally, and the alignment of the fractures suggested an applied force consistent with metabolic bone disease. Dr. Ayoub determined Raymond's ribs were consistently pulled apart from a top-to-bottom direction, which is "not the direction you get from a direct blow, which is a compression from front to back."

Further, Dr. Ayoub opined the number of fractures belied trauma, stating "if the implied force is a hand to this rib or a thumb grabbing the child facing the child, the thumb is a single digit and a thumb would only cover at the most two ribs even in an infant." Even assuming Raymond's bones were of normal strength, Dr. Ayoub rejected the possibility of a squeeze injury because a force applied to the chest substantial enough to result in as many fractures would cause significant internal injury to the point the baby "would be highly unlikely" to survive. Dr. Ayoub explained

a healthy rib particularly in a young person, infant or child[,] is flexible. And in order to break it under pressure it has to be displaced significantly. . . . An infant's ribs and bones in general are more like a green stick, flexible before they snap, adult like chalk or dry stick. So in order to break normal bones in a young person, particularly an infant it has to be displaced further than a comparable adult bone. It's the displacement process that tears the lung, tears the liver, [and] bruises the lung and so forth. . . . This is an unprecedented number of fractures . . . without internal injury. So that tells me that the bones broke under low forces, minimal displacement.

 

Dr. Ayoub suggested the fractures were caused by a violent muscle contraction, resulting in symmetrical and contemporaneous fractures. Such forceful contractions could occur during a seizure, especially if the bones were already fragile.

Dr. Ayoub was "also certain" Raymond suffered from hyperparathyroidism, an overproduction of parathyroid hormone, which further contributed to his bone abnormalities. He found "virtually diagnostic signs of elevated parathyroid hormone or hyperparathyroidism on the [April 4] skeletal survey." Confirmation of this diagnosis required examination of the parathyroid hormone level, which had not occurred.

On cross-examination, Dr. Ayoub admitted his prior report did not discuss his claim of metabolic bone disease; rather, he reported the April 4 chest x-ray was "normal." He further acknowledged that none of Raymond's bones, where he found abnormalities from bone disease, had broken; only bones without abnormalities fractured. Dr. Ayoub also agreed he had no evidential support for the assertion some of Raymond's fractures could have been sustained while he was admitted at CHOP.

Turning to the healing rib fractures shown on Zan's x-rays, Dr. Ayoub testified it was impossible to determine the exact cause or timing of these injuries. He estimated they could be as little as six weeks or as much as two years old. With respect to the cause of these injuries, their age precluded the ability to "differentiate between accidental injury, abusive injury or pathological fracture from weak bones."

Rafael's final expert, Dr. Gambone, related his findings regarding Sara's psychological functioning. His testimony was directed toward the theory that Rafael was a capable parent and Sara was not. Therefore, she was more likely the perpetrator of Raymond's injuries. During his evaluation Sara was "anxious, defensive, dependent, and submissive," but he found no significant cognitive deficit impairing her ability to parent. Nevertheless, Dr. Gambone opined Sara's parenting skills were quite poor and adversely affected by various stressors in her life. In his opinion, Sara held a superficial understanding of her children's physical, emotional, intellectual, and social needs, and was poorly motivated to improve her parenting skills. Although Sara confirmed she would never hurt her child and "never knew [Rafael] to be a violent person[,]" Dr. Gambone concluded Sara presented a moderate risk for future violence in a domestic setting, based on her documented history of physical violence related to interpersonal conflict and her "difficulty in controlling internal and environmental indications of anger or hostility."

The final trial witness was Dr. Kairys, called by the Division as an expert in pediatrics with special expertise in child abuse. His testimony addressed his findings and refuted the findings offered by Drs. Ophoven and Ayoub.

Dr. Kairys examined Raymond on May 10, 2010, which triggered "very high concerns about the potential for inflicted injury" because:

First, the fact that he had evidence of multiple rib fractures when the rest of his bones looked very normal and the ribs themselves looked normal except for the fractures. Second, he had, on the pediatric ophthalmologist's exam, . . . more evidence of bleeding into the back of the eyes than was seen both at CHOP and then he had had just a recent second review by a pediatric ophthalmologist up in New Brunswick . . . I think just that day . . . that . . . by that report, didn't show the sort of new bleeding that . . . had occurred by our pediatric ophthalmologist's evaluation. And then the MRI showed a large amount of fluid outside the brain. The brain was definitely damaged from the previous stroke, but also some fresh blood in the posterior aspect of the subdural area outside the brain.

 

Dr. Kairys opined the rib injuries could have been as recent as two hours before the May 10 x-rays were taken or seven to ten days old. The x-rays showed no callus formations or signs healing had begun.

Initially, Dr. Kairys questioned CHOP's theory as an AVM was not visible on any of the studies. He believed CHOP "just speculated that it was still possible, but they couldn't demonstrate it" and stated when he spoke with CHOP's SCAN team they were "not sure" of the etiology of Raymond's injuries; they believed "the pattern of findings [wa]s not classic for abusive head trauma, although abusive head injury cannot be definitively ruled out." Dr. Kairys noted "it is still possible that this original brain damage was also inflicted," then quickly added "that's purely my speculation."

Dr. Kairys urged Raymond's ribs were unquestioningly fractured by force, not due to rickets or bone disease. He found no "type of rickets symptoms." He explained that usually children with rickets are not growing; have swollen, protuberant bellies; and are quite weak. Because of poor bone mineralization, their heads feel like ping pong balls, such that "when you push on the head, it pings in and out," which is known as craniotabes. Also, the bones themselves look abnormal. It is "not just [that they] are . . . looking under-mineralized, but the bones where they grow, which is the ends of the bones, what are called the metaphysis, are swollen and distorted and abnormal and quite, quite abnormal, very, very apparent to anybody reading an x-ray." When rickets involve the ribs, it is seen at the growth plate and you find "little bead-like callus formations where the rib hits the sternum[.]"

Dr. Kairys detailed his disagreement with the opinions of Drs. Ophoven and Ayoub, rejecting the possibility Raymond's fractured ribs resulted from deficient pre-natal care, bone disease, or other metabolic deficiency. Dr. Kairys found no evidence Sara or Raymond had Vitamin D or calcium deficiencies and explained congenital rickets is very rare. His review of the medical records showed lab work, collected in February 2010 during Sara's third trimester, recorded normal calcium and phosphate levels. Although Sara's alkaline phosphatase level was mildly elevated, this was normal during pregnancy, particularly in the third trimester, and not a sign of Vitamin D deficiency or rickets. Moreover, babies born with bone abnormalities are typically premature and have low levels of calcium; Raymond had neither symptom. Finally, Dr. Kairys noted the absence of bruising did not discredit the cause as non-accidental trauma, as physical evidence of bruising occurs only about twenty percent of the time when infants sustain rib fractures.

Based on the nature and location of the rib fractures, Dr. Kairys opined they were not from an accidental or metabolic occurrence. He insisted rib fractures were extremely rare because the ribs are well protected by muscle and are not very exposed. Dr. Kairys clarified the abuse was not a "shaken baby" case, but rather a "squeeze" case. In his view "there really isn't a lot that I know" that can cause the number of fractures endured by Raymond "except somebody, you know, forcibly squeezing hard enough . . . so that the ribs start to break because of compression." Dr. Kairys concluded to a reasonable degree of medical certainty that Raymond's rib fractures were inflicted.

Dr. Kairys responded to claims suggesting abuse or other inflicted trauma could not be accepted as the cause of Raymond's injuries because tests for metabolic bone disease were not conducted. He elaborated:

You think about metabolic bone disease when there's indicators that make you worry about metabolic bone disease because the bones look abnormal, because the x-rays are concerning, because the physical findings are concerning, because screening and lab work is concerning. . . .

 

There wasn t anything on what I found to have for me any concern that there was metabolic bone disease. So, we did the basis screening: calcium, phosphorous, alkaline phosphatase, live[r] function test, complete skeletal surveys, review with our radiologist. We have a pediatric radiologist who was trained at CHOP who went over all these x-rays with me. None of us ever considered metabolic bone disease to be part of the differential. So, we did not do the more definitive testing.

 

Turning to Zan's injuries, Dr. Kairys reviewed the skeletal survey and determined at least three ribs were fractured anywhere from three weeks to four months ago. These fractures were located posteriorly to where the ribs connect to the vertebrae, an unusual location for non-accidental fractures. Dr. Kairys stated the injuries were "highly suspicious for non-accidental injury," especially given the absence of any explanation for the fractures.

At the close of evidence the parties agreed to file written summations and the trial judge reserved his decision. In his March 11, 2011 written opinion, the judge succinctly and thoroughly recounted the testimony of all of the witnesses, made detailed credibility determinations with respect to each of the experts and restated an earlier finding that the Division's evidence established "a prima facie case of abuse." He rejected the contention that the evidence was sufficient "to establish that the brain and retinal injury suffered by Raymond was the result of any abuse by the parents." Further, he found the Division "failed to establish . . . [that the] rib fractures suffered by [Zan] were caused by the abuse and neglect of the defendants" or that Alex was abused.

However, the judge concluded the Division had clearly and convincingly6 established Raymond's rib injuries resulted from abuse while in the exclusive care of Sara and Rafael and their evidence "failed . . . to counter the clear and convincing evidence provided by the Division" or "show that the rib fractures could have occurred at a time when Raymond was in the care of others." The judge found the Division's experts "more credible" rejecting as "highly speculative" and "unconvincing" the theories of rickets or metabolic bone disease advanced by Drs. Ophoven and Ayoub. The Division's experts refuted any exculpatory evidence advanced by Rafael and found there was no collateral evidence of bone disease. The judge further determined the Division's experts and "the clear and greater weight of the evidence support the findings of Dr. Markowitz and Dr. Kairys."

Subsequently, the Division filed a complaint for guardianship and moved to dismiss the protective services litigation. The motion was granted and defendants separately filed these appeals.

The scope of our review of a trial court's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). We accord deference to a family court's factual findings, largely because the family court "has the opportunity to make first-hand credibility judgments about 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) (citing M.M., supra, 189 N.J. at 293). Accordingly, the family court's factual findings "should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever they are supported by 'adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). Of course, the trial court's "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference[,]" but rather are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

On appeal, defendants dispute the sufficiency of the evidence supporting the trial judge's finding of abuse and argue the judge mistakenly burdened them with proving they did not abuse Raymond. The adjudication of abuse and neglect is governed by Title Nine, N.J.S.A. 9:6-8.21 to -8.73, which is designed to protect children who suffer serious injury inflicted other than by accidental means. G.S. v. Dep't of Human Servs., 157 N.J. 161, 170 (1999) (citing N.J.S.A. 9:6-8.8).

An "abused or neglected child" is defined as

a child less than 18 years of age whose parent or guardian . . . 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 loss or impairment of the function of any bodily organ . . . .

 

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

Further, in a fact-finding hearing, to determine the allegations of abuse or neglect

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[.]

 

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

 

It is well-established the Division bears the burden to prove, by a preponderance of evidence, that a child is abused or neglected. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011) (quoting N.J.S.A. 9:6-8.46(b)). When identifiable persons have had custody of an infant who suffers injuries while in their care, an inference of abuse and neglect arises and "'[t]he burden would then be shifted, and such defendants would be required to come forward and give their evidence to establish non-culpability.'" N.J. Div. of Youth & Family Servs. v. J.L., 400 N.J. Super. 454, 468 (App. Div. 2008) (alteration in original) (quoting In re D.T., 229 N.J. Super. 509, 517 (App. Div. 1988)). See also N.J. Div. of Youth & Family Servs. v. S.S., 275 N.J. Super. 173, 181 (App. Div. 1994) (requiring the mother and her paramour to prove their non-culpability after the Division established a prima facie case of abuse of minor child). "The criteria for application of the . . . burden-shifting paradigm . . . requires that a defined number of people have access to the child at the time the abuse definitively occurred." J.L., supra, 400 N.J. Super. at 469.

Alternatively, when a child who suffers injury has been exposed to a number of individuals over a period of time and it is unclear exactly when and where the injuries occurred, "once the Division establishes a prima facie case of abuse or neglect under N.J.S.A. 9:6-8.469(a)(2), the burden will shift to the parents to come forward with evidence to rebut the presumption of abuse or neglect." Id. at 470. In such an instance,

parents are not obligated to present evidence. They may choose to rest and allow the court to decide the case on the strength of the Division's evidence. They may present evidence tending to refute the Division's prima facie case by showing, for example, that the child was not in their care when the injury occurred or that the injury could reasonably have occurred accidentally, with or without any acts or omissions on their part.

 

[Id. at 472 (internal citations omitted).]

 

In either case, the Division must always establish abuse or neglect.

On appeal, Sara argues the judge erroneously shifted the burden of proof, requiring defendants to prove non-culpability, rather than merely requiring them to submit evidence rebutting the Division's prima facie case of abuse. Sara relies on the fact no expert pinpointed an exact date when Raymond sustained rib fractures, and that the estimated age of the fractures included several days when he was hospitalized. Sara maintains: "Raymond was exposed to unidentified individuals over a period of time, and it was unclear as to exactly where and when the child's injuries took place." She contends had the court applied the burden-shifting standard correctly, the Division would have been unable to meet its burden of proof.

Rafael argues the judge erred in granting the Division's request "that the burden to rebut that presumption of culpability be shifted to defendants" based on the Division's establishment of a prima facie case of abuse or neglect. This challenge is directed to the judge's "flawed" reasoning that defendants were Raymond's sole caretakers when he was injured. Although the trial judge's opinion, at times, muddles the applicable burdens of proof, following our review, we conclude both parents' arguments are unfounded.

At the close of evidence, the Division, joined by the Law Guardian, informed the court it believed the evidence showed defendants were Raymond's sole caretaker at the time he was injured, thereby shifting the burden to defendants to rebut the presumption that their acts or omissions caused the injuries. The judge advised he found the Division proved a prima facie case of abuse and neglect as to Raymond's rib injuries. Although stating the burden of proof does not shift, the judge held "the burden to present evidence to counteract the allegations as established on the record by the Division" shifts to defendants "to provide testimony and evidence to indicate some alternate explanation as to what happened[.]" Following that pronouncement, defendants were asked whether they rested or would provide additional evidence. They rested on the evidence of record. On November 19, 2010, the court ordered that because the Division had established a prima facie case of abuse and neglect to Raymond, defendants "have the burden of going forward with evidence to establish non-culpability."

If the court found Raymond was not exclusively in defendants' care, defendants' burden was merely to offer, if they chose to do so, evidence rebutting the prima facie presumption of abuse established by the Division. J.L., supra, 400 N.J. Super. at 470. Admittedly, defendants were not required to present any evidence. Id. at 472. However, at this point in the proceeding, they had already done so. Therefore, we find no harm in the judge's inartful articulation suggesting defendants "held the burden to present evidence" to rebut the Division's proofs.

Thereafter, the opinion states because the Division established a prima facie case of abuse, the burden of "establishing non-culpability" shifted to defendants. This is the burden imposed if defendants were shown to be the sole caretaker of a child who suffered inexplicable injury. See D.T., supra, 229 N.J. Super. at 517. At the same time, the judge rejected defendants' evidence, stating they had "failed to produce sufficient evidence to counter the clear and convincing evidence provided by the Division that [Raymond] suffered an inflicted injury to his ribs during a time in which [he] was in their exclusive care." This standard is imposed when custody is not exclusive. J.L., supra, 400 N.J. Super. at 470. Nonetheless, the apparent confusion did not improperly burden defendants, as the trial judge's findings, which are clearly and convincingly grounded in substantial credible evidence of record, sustain his conclusion that defendants had exclusive care of Raymond when he was injured. As such, they were required to "establish non-culpability."

Both the Division's and defendants' experts agree Raymond's ribs were fractured between May 1 and May 10. Dr. Ayoub opined the fractures, which appeared acute, had not begun to heal and were "within ten days of age and in [his] opinion they're probably sooner than that." Dr. Markowitz similarly saw no signs of healing when he reviewed the May 12 x-rays, concluding the fractures were "relatively fresh, . . . probably within a week to ten days of age." Dr. Kairys explained the fractures could be as recent as within two hours of the May 10 x-rays or seven to ten days old.

The fact that Raymond was in CHOP's care from May 1 until his discharge on May 5, led to defendants' suggestion that the number of people who had access to him when he was injured was not finite, precluding burden shifting. The judge considered and rejected the theory Raymond was injured while at CHOP. Crediting Dr. Markowitz's "critical" testimony, which stated: "when [the fractures] were fresh, they would hurt when the child moved and he would cry. As they began to heal, they become less painful." The court found, "[i]t is inconceivable that the child could have suffered these rib injuries while at CHOP and that those serious and painful injuries would have gone undetected by trained medical personnel who were providing constant care to the child."

We do not find fault with this determination. Further, we note the record shows Raymond was visited by Sicilia on May 6, who observed no problems with the baby or his care; then underwent an examination by his pediatrician on May 7, which disclosed no problems; and finally saw his ophthalmologist the morning of May 10 and he was not found in distress or discomfort. Had Raymond sustained rib fractures prior to his May 5 discharge, some sign of pain or discomfort, such as irritability or fussiness, would have been noticed by the professionals evaluating him before discharge and the doctors who examined him in the days following discharge.

The unique facts in J.L., supra, 400 N.J. Super. at 457-66, are distinguishable from those at hand. In J.L., the Division appealed from an adverse finding following trial that its evidence proved the child's injuries resulted from parental abuse. Id. at 457. The parents presented expert evidence showing the mother suffered from osteopenia, a bone weakening disease, id. at 460, and her mother also suffered from osteoporosis diagnosed at a very early age. Id. at 464. Further, the defendants' infant daughter suffered from acid reflux and other conditions causing difficulty in retaining food and consuming nutrients. Id. at 460. The child was subject to physical restraint during prior diagnostic medical procedures to evaluate her condition. Ibid. Extensive testimony from the parents and other witnesses explained the defendants' tireless attempts to obtain care for their baby, including having her transferred to CHOP, ironically, where the question of possible child abuse first arose. Id. at 459. Finally, the parents' expert offered testimony credited by the trial judge that the child's injuries were not a result of parental abuse. Id. at 467. Specifically, the evidence demonstrated that in seeking care for the child, there were any number of people who had access to this child from the date he was born to the date these fractures were discovered, including friends who visited the parents and the baby the day before her injuries were diagnosed. Id. at 469-70.

The evidence here does not parallel that of J.L. Rather, defendants' limited proofs were pieced together to weave a theory of a possible alternative cause of Raymond's fractures. Sara was never found to have a Vitamin D deficiency and Raymond was not found to have rickets or any condition resulting in brittle bones; in fact, several diagnostic studies showed his bone development was normal as confirmed by Dr. Ayoub's initial expert report.

Noting each case turns on its own facts, Barr v. Barr, 418 N.J. Super. 18, 44 (App. Div. 2011) (citing Painter v. Painter, 65 N.J. 196, 213-14 (1974)), we reject defendants' challenges and defer to the trial judge's factual findings, which are clearly and convincingly based on substantial, credible evidence in the record. See E.P., supra, 196 N.J. at 104. Therefore, the finding that Raymond was in defendants' exclusive care when injured substantiated the judge's conclusion defendants were required to offer evidence of non-culpability.

In any event, the Division's evidence sufficiently satisfied the higher standard applied when custody of the child is not exclusive. The judge specifically found "the Division has proven by clear and convincing evidence, that the rib fractures suffered by Raymond were caused by the defendants[.]" In a comprehensive review of the evidence, the judge considered all expert testimony. He detailed why Rafael's experts' opinions that Raymond suffered from rickets or bone disease was rejected as "highly speculative" and "unconvincing." The judge fully considered and rejected the alternate causal theories, as well as the argument Raymond was injured while at CHOP. Our review finds no basis to set aside these determinations.

We also reject defendants' contention challenging the sufficiency of the evidence. Attacking the credibility determinations underlying the Judge's conclusions, defendants seek reversal. However, defendants have not provided a factual or legal basis for disturbing the trial judge's supported, detailed, and thoughtful credibility determinations and factual findings. The judge demonstrated a careful consideration of all of the evidence and did not arbitrarily adopt the testimony of the Division's witnesses. Therefore, we conclude these arguments lack sufficient merit to warrant extensive discussion. R. 2:11-3(e)(1)(E).

Affirmed.

 

1 On June 29, 2012, the Department of Children and Families was reorganized and the Division of Youth and Family Services was renamed as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012 (amending N.J.S.A. 9:3A-10b).

2 In our opinion we use fictionalized names for ease of review.

3 AVM is an abnormal connection between the arteries and veins. Robert Schmid-Elsaesser et al., Neurosurgery of Arteriovenous Malformation & Fistulas: A Multimodal Approach, 1 (7th ed. 2002). In infants, the condition results during fetal development or shortly after birth. Ibid. The condition can produce the stroke-like symptoms and hemorrhaging experienced by Raymond. Id. at 3.

4 The charges were pending at the time of trial. Also, the record includes information regarding what is characterized as Rafael's custodial confession. Because the trial judge rejected consideration of this evidence, we decline to discuss it.

5 Alkaline phosphatase is an enzyme related to bone metabolism.

6 The trial judge applied the higher standard of clear and convincing evidence, after complying with the notice requirements of N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88 (2011). In this way, the finding of abuse has collateral or preclusive effect in subsequent guardianship proceedings. Id. at 93.