NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. Y.A.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2047-11T3

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

Y.A.,

Defendant-Appellant,

and

J.L.,

Defendant.

_________________________________

IN THE MATTER OF J.L., a minor.

________________________________________________________________

December 11, 2012

 

Submitted October 29, 2012 - Decided

 

Before Judges Espinosa and Guadagno.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FN-14-176-10.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Vecchio, Designated Counsel, on the brief).

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.L. (David Valentin, Assistant Deputy Public Defender, on the brief).

 

PER CURIAM

Defendant Y.A. (Yasmin)2 appeals from an order entered pursuant to N.J.S.A. 9:6-8.21 to -8.73 (Title Nine), finding that she abused and neglected her son, J.L. (Johnny). Johnny was born May 25, 2009.3 This case was initiated when Johnny's pediatrician, Dr. Jacek Sakowski, contacted the Division of Youth and Family Services (DYFS or the Division) on May 27, 2010, because he observed injuries on Johnny that he deemed to be suspicious.

Monica Heiman, a Family Service Specialist employed by DYFS, responded to Yasmin's home with a co-worker to conduct an investigation. They met with Yasmin and her mother, D.A. (Donna). Yasmin told Heiman that she did not know how Johnny got the marks and bruising on his body. Yasmin accompanied the DYFS employees to the Audrey Hepburn Children's House, where Johnny was examined by Dr. Nina Agrawal. Dr. Agrawal concluded that Johnny was a battered child, that the bruising was "very suspicious," and that it was necessary for him to be admitted to the hospital for further testing to ensure he had no internal bleeding or other injuries. When Yasmin did not agree to Johnny's hospital admission, the Division effected an emergency removal pursuant to N.J.S.A. 9:6-8.29 and 9:6-8.304 and brought Johnny to the Hackensack Hospital.

On June 1, 2010, the trial court signed an order to show cause and granted DYFS custody of Johnny, who was then placed in foster care. DYFS was granted continued custody on June 22, 2010, the return date on the order to show cause.

An abuse and neglect fact-finding hearing was scheduled for September 23, 2010. By August 12, 2010, Yasmin's private counsel indicated that ancillary services for an expert witness were approved. On August 25, 2010, Yasmin filed a substitution of attorney with the court. Her private counsel was relieved and, as of that date, she was represented by appointed counsel. The fact-finding hearing was adjourned to December 1, 2010.

At the fact-finding hearing, Yasmin's new counsel requested an adjournment, stating that he did "intend if at all possible to produce an expert through the Office of Parental Representation" and was unsure if he would be ready by the return date of December 14, 2010. The judge denied the request, stating that Johnny's placement had been made seven months earlier and that current counsel had since August to secure a witness and written proofs. Citing the interest of establishing permanency for Johnny, the judge continued with the hearing.5

The judge heard testimony from Heiman, Dr. Agrawal and Melissa Ackerman, an employee at Johnny's daycare facility. Heiman provided evidence regarding her initial investigation through her testimony and her investigative summary, which was received in evidence.

Yasmin brought Johnny to daycare from 9 a.m. to 4 p.m., Monday through Friday. Because Johnny had asthma and was also susceptible to illness, Yasmin brought him to his pediatrician, Dr. Sakowski, about twice a week.

On May 21, 2010, Yasmin brought Johnny to Dr. Sakowski for a fever he developed while at daycare. The doctor recommended an over-the-counter medication to reduce the fever. On May 24, 2010, Yasmin noticed that Johnny had developed a rash. On May 25, 2010, the rash had not improved and Johnny had a high fever. Yasmin brought Johnny back to Dr. Sakowski, who prescribed over-the-counter medications for Johnny's symptoms. Although the rash had not disappeared, Johnny returned to daycare on May 26, 2010.

The DYFS caseworker's report included Yasmin's description of the events on the evening of May 26. Yasmin picked Johnny up in the evening, brought him home, had dinner, gave him a bath, played out on the balcony, and put him to bed. Donna arrived at Yasmin's residence around 10 p.m. to visit but was not left alone with Johnny. Yasmin told the caseworker that Johnny woke up screaming at approximately 3:30 a.m. on May 27, 2010. She did not notice anything out of the ordinary, gave him a bottle, and put him back to sleep. The next morning, Yasmin noticed blood on Johnny's clothing on his inner thigh. While changing his diaper, she saw scratch marks and bruising on his ribs that were not present the night before. She stopped by the daycare center to pick up Johnny's crib sheets and informed them she was taking Johnny to the pediatrician.

Dr. Sakowski examined Johnny later that afternoon and noted bruising on his ribcage, back, and left inner thigh, and small cuts on his left thigh and left arm. The doctor questioned Yasmin but she was unable to explain how the bruises and cuts were caused. The doctor informed Yasmin that he was calling DYFS and noted that the marks appeared to have been caused "from squeezing the child." In his referral to DYFS, Dr. Sakowski reported that Johnny had suspicious marks and bruising on his body.

Heiman recounted the information Yasmin provided to her regarding Johnny's injuries:

[Yasmin] had stated that she was not sure how the marks had appeared. She stated that she was bathing [Johnny] the night before that he did not have any abrasions or lesions on him, and when she was changing him the following morning, that is when she noticed the abrasions.

 

Heiman examined Johnny and observed "scratches on his arms and his thighs, and . . . bruising on either side of his rib cage and on top of bruising were abrasions." Heiman questioned Yasmin about the injuries and she replied that it was possible that Johnny, who had long fingernails, had scratched himself throughout the night.

Yasmin was also asked if anyone else had cared for Johnny during the seventy-two hours between May 25 and May 27. She stated that her mother visited Johnny but had not been left alone with him.

Melissa Ackerman testified that she worked as one of two teachers assigned to the infant room of Johnny's daycare facility. She recalled him coming to daycare in May 2010 with a rash and observed no other injuries on him that day. On the following day, his mother came and said the rash had gotten worse and that she was taking him to the doctor. She testified further that the facility was equipped with a security system that had cameras in all the classrooms and that, if a child was injured while in their care, it would be recorded.

Dr. Agrawal was qualified as an expert physician in the area of child physical abuse and neglect. She testified that, upon examination of Johnny, she observed "significant bruises." She distinguished the rash, which she said was not caused by abuse, and described the characteristics of his bruising that indicated it was caused by physical abuse:

[H]e had significant bruising over his body. He had no history of a medical disorder that would account for this. And the bruising was on areas that were not associated with accidental trauma, the most marked being on his trunk . . . the middle of his body, the chest and the abdomen and that's an area where he has the most extensive bruising. They were different colors. And that's an area that children don't self-inflict, they don't get from falling onto themselves.

 

Dr. Agrawal stated further:

[A]ny bruising or abrasions on the trunk itself is a red flag. So the fact that it occurred on both sides would indicate it was more extensive trauma. If you were to give a hypothetical that the child fell, it would be on one side, it wouldn't be on both sides.

 

In addition to the bruises on both sides of the torso, Dr. Agrawal noted that the bruises and abrasions extended to Johnny's back area. There were also bruises present on both inner thighs and multiple abrasions on the back of his lower left leg. She testified that these injuries were "consistent with non-accidental trauma." Dr. Agrawal also testified that, while children do scratch themselves, the abrasions present on Johnny were a scraping of the skin due to trauma, not of a type self-inflicted by a child and not in an area that is typically self-inflicted. Dr. Agrawal opined that, within a reasonable degree of medical certainty, there was no medical explanation or organic cause for the bruises and abrasions she described.

Yasmin did not testify or call any witnesses.

The trial judge issued an oral opinion on January 5, 2011. The court found the testimony of Ackerman and Heiman to be credible and unrebutted. The judge noted that during the relevant seventy-hour period, Yasmin was the sole caretaker of Johnny and Donna was never left alone with him. The court found by clear and convincing evidence that "[Yasmin] caused the injuries to the child that resulted in the severe bruising on his body on or about May 27, 2010." The court stated, "Somehow, during that period of time, the child went from having no bruising to having severe bruising which the unrebutted medical testimony suggested was abuse."

On November 17, 2011, DYFS filed a complaint for guardianship and termination of parental rights. That same day, the trial court entered an order dismissing the Title Nine litigation in light of the complaint.

Yasmin presents the following arguments for our consideration:

POINT I

 

DYFS FAILED TO PROVE THAT THE MOTHER CAUSED THE INJURIES TO JOHNNY BY CLEAR AND CONVINCING EVIDENCE.

 

POINT II

 

THE TRIAL COURT ERRED IN APPLYING THE "CLEAR AND CONVINCING" STANDARD OF PROOF WHERE THE MOTHER WAS NOT PUT ON NOTICE THAT SUCH A STANDARD WOULD BE APPLIED.

 

POINT III

 

THE MOTHER WAS DEPRIVED EFFECTIVE ASSISTANCE OF COUNSEL BY TRIAL COUNSEL'S FAILURE TO SECURE AN EXPERT WITNESS, FAILURE TO ADEQUATELY CROSS-EXAMINE DYFS' EXPERT WITNESS AND FAILURE TO OBJECT TO THE TRIAL COURT'S APPLICATION OF THE CLEAR AND CONVINCING STANDARD OF PROOF.

 

POINT IV

 

THE TRIAL COURT ERRED IN REFUSING TO GRANT THE MOTHER AN ADJOURNMENT TO RETAIN AN EXPERT WITNESS.

We are not convinced by any of these arguments and affirm.

I

Defendant first argues that the Division failed to prove that she caused the injuries to Johnny by clear and convincing evidence. That is not, however, the standard of proof applicable to a Title Nine proceeding and so, we measure the sufficiency of the proof against the standard applicable to such a proceeding.

Pursuant to N.J.S.A. 9:6-8.21 to -8.82, the Division may initiate legal action by filing a complaint alleging facts "sufficient to establish that a child is an abused or neglected child." N.J.S.A. 9:6-8.33 to -8.35. The statutory definition of "[a]bused or neglected child" includes

a child less than 18 years of age whose parent or guardian, as herein defined, (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 loss or impairment of the function of any 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; . . . (4) or a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, as herein defined, to exercise a minimum degree of care . . . (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court; . . . .

 

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

 

The determination of abuse and neglect is made by the trial court following a fact-finding hearing, at which "only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b). Further, "any determination that the child is an abused or neglected child must be based on a preponderance of the evidence[.]" Ibid.

Defendant does not dispute that the "severe bruising" found by the court was sufficient to constitute abuse within the statutory definition. Her argument focuses upon the sufficiency of proof that she caused the injuries.

It was undisputed that the suspicious injuries appeared on the evening of May 26 to 27, 2010 and were not present when Dr. Sakowski examined Johnny on May 25. Defendant admitted that she was the only person to care for Johnny during that time. Defendant was unable to explain how the injuries occurred while Johnny was in her care. The State presented expert testimony from Dr. Agrawal that supported the conclusion the injuries were caused by abuse.

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

[P]roof of injuries sustained by 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[.]

 

Such proof was plainly present here and further, was unrebutted. We are therefore satisfied that the finding of abuse and neglect was supported by a preponderance of the evidence, meeting the standard for a finding of abuse and neglect.

II

Defendant next argues that the trial court erred in applying a "clear and convincing" standard of proof because she was not put on notice that such a standard would apply. This argument lacks sufficient merit to warrant discussion in a written opinion beyond the following brief comments. R. 2:11-3(e)(1)(E).

In N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88 (2011), the Supreme Court concluded,

[U]nless the parties are on notice that the Title Nine proceedings are to be conducted under the higher, clear and convincing evidence standard constitutionally required for Title Thirty proceedings and appropriate accommodations are made for the fundamentally different natures of these disparate proceedings, Title Nine determinations cannot be given collateral or preclusive effect in any subsequent and related Title Thirty proceedings.

 

[Id. at 93.]

 

See also N.J. Div. of Youth & Family Servs. v. H.P., 424 N.J. Super. 210, 224 (App. Div. 2011). Therefore, as the Division concedes, the finding of abuse and neglect in this case cannot be given collateral or preclusive effect in the guardianship proceeding. However, it is evident that defendant was not prejudiced by the application of a higher standard in the Title Nine proceeding.

III

Defendant next argues that she was deprived the effective assistance of counsel because her attorney failed to obtain an expert witness; failed to cross-examine Dr. Agrawal regarding the time frame when Johnny sustained his injuries; and failed to object to the trial court's application of the clear and convincing standard of proof.6 We find these arguments unpersuasive.

In N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301 (2007), the Supreme Court adopted the Strickland/Fritz7 standard applicable to ineffective assistance of counsel arguments in criminal cases for use in parental termination cases. Id. at 308-09. The Court directed that such claims be raised on direct appeal and stated further:

[A]ppellate counsel must provide a detailed exposition of how the trial lawyer fell short and a statement regarding why the result would have been different had the lawyer's performance not been deficient. That will include the requirement of an evidentiary proffer in appropriate cases. For example, if the failure to produce expert or lay witnesses is claimed, appellant will be required to supply certifications from such witnesses regarding the substance of the omitted evidence along with arguments regarding its relevance.

 

[Id. at 311.]

Defendant contends that her trial counsel had plenty of time to obtain an expert witness and that the "retention of such an expert could have absolutely changed the outcome of the trial." However, no certification by any expert has been provided to show that it was feasible to present expert testimony that conflicted with Dr. Agrawal's. In fact, Yasmin's attorney admitted at the permanency hearing on May 12, 2011 that he was "unsuccessful in securing an expert who was able to contradict the Division's evidence at [the] fact-finding [hearing]."

Defendant also contends that cross-examination of Dr. Agrawal on the timing of the injuries "could have exonerated the mother and shown that the injuries were likely inflicted by a daycare center worker or the maternal grandmother." However, defendant provided the timeframe in which the injuries first appeared and acknowledged that she was the only person caring for Johnny during that period.

The record shows that "the outcome would not have changed," see ibid., if either an expert had been called or counsel had cross-examined Dr. Agrawal on the timing of the injuries. We therefore conclude that defendant's ineffective assistance of counsel argument lacks any merit.

IV

Finally, defendant argues that the trial court abused its discretion in denying her counsel's requests for an adjournment to obtain an expert. We disagree.

The decision whether to adjourn a case due to the unavailability of an expert witness lies within the discretion of the trial court. Kosmowski v. Atlantic City Med. Ctr., 175 N.J. 568, 574 (2003). Defendant admitted that her counsel had plenty of time to secure an expert. In light of her counsel's subsequent admission that he was unable to secure an expert to contradict Dr. Agrawal, it is evident that she did not suffer any prejudice as a result of the trial court's denial of the adjournment request. We therefore conclude that the trial court did not abuse its discretion in denying the adjournment request.

A

ffirmed.

1 On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, which includes the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c., eff. June 29, 2012. Because this matter preceded that date, we continue to refer to the Division of Youth and Family Services.

 

2 Fictitious names are used to avoid confusion and protect the confidentiality of the child.

3 Defendant J.L. is Johnny's biological father, who was not a part of Johnny's life and had minimal visitation. Yasmin was awarded sole custody of Johnny in April 2010. J.L. did not participate in this proceeding and did not appeal.

4 The Dodd Act, N.J.S.A. 9:6-8.21 to -8.82, provides for emergency removals without a court order or parental consent where the child's "life, safety or health" is in "imminent danger." N.J.S.A. 9:6-8.29(a).

5 When the fact-finding hearing continued on December 14, 2010, Yasmin's counsel requested an additional hearing date in January to reserve the possibility of presenting an expert witness. The judge again denied the request, stating that this would constitute a lack of notice to DYFS, and that expert reports must be exchanged prior to testimony to ensure equal footing. The judge stated that counsel had had ample time to secure an expert.

6 As we have noted, defendant suffered no prejudice by the application of a higher standard of proof, rendering the last of these arguments meritless.

7 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987).