D.Y. v. P.F.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

D.Y.,

Plaintiff-Appellant,

v.

P.F. and N.F.,

Defendants-Respondents.

________________________________

IN THE MATTER OF B.F., a minor.

________________________________

June 5, 2014

Before Judges Sapp-Peterson, Lihotz and Maven.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FN-03-129-11.

Adler & Kleinman, attorneys for appellant (Toby G. Kleinman, on the briefs).

Afonso, Baker & Archie, P.C., attorneys for respondent P.F. (Eric R. Foley, on the brief).

Frank H. Rose, attorney for respondent N.F.

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor has not filed a brief.

PER CURIAM

Defendants P.F. and N.F. are the parents of ten-year-old B.F. In March 2010, N.F. filed for divorce. To characterize the parties' relationship as contentious would be an understatement. The issues generating most of the litigation were custody and parenting time of B.F.

N.F. also filed a Title 9 action, alleging P.F. abused and neglected B.F. Following an emergent hearing, the judge found no basis to conduct a separate action, concluding concerns regarding the child's welfare would be addressed in the pending matrimonial litigation. N.F.'s appeal of that order was dismissed.

Thereafter, plaintiff D.Y., who is N.F.'s father and B.F.'s grandfather, filed a separate Title 9 complaint, in which he presented the same allegations previously advanced by N.F. in her dismissed complaint. The reviewing judge dismissed the action, relying on the prior determination that the issues were to be addressed in the matrimonial litigation. Plaintiff appealed and we reversed. Accordingly, plaintiff's action was reinstated. The Division of Youth and Family Services (Division)1 and N.F.2 participated in the Title 9 proceeding.

Following a fact-finding hearing, which was conducted over seventeen non-consecutive days, Judge Philip E. Haines issued a comprehensive thirty-eight page written opinion. He set forth his findings, after considering the parties' testimony, as well as the expert and documentary evidence. The judge concluded plaintiff had not proven allegations of abuse by a preponderance of the evidence and dismissed his complaint. Plaintiff appeals from that order. We affirm.

The scope of our review of a trial court's factual findings made following a non-jury trial is limited. D.N. v. K.M., 429 N.J. Super. 592, 596 (App. Div. 2013) (citation omitted). "A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). We afford particular deference "to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family." N.J. Div. of Youth & Family Servs. v. F.M, 211 N.J. 420, 448 (2012) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Consequently, a family court's factual findings "should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice[.]'" J.T., supra, 269 N.J. Super. at 188 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). Even where there are alleged errors in the trial court's evaluation of underlying facts, a reviewing court "will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (citation and internal quotation marks omitted).

We especially defer to the trial judge's credibility determinations. This is because the trial judge "has the opportunity to make first-hand credibility judgments about witnesses who appear on the stand[.]" N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). This "'feel of the case' . . . can never be realized by a review of the cold record." Ibid. (citation omitted).

We do not, however, defer to legal determinations. Rather, our review of a trial court's legal conclusions is always plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

On appeal, plaintiff argues the trial court failed to shift the burden of proof to defendant once a prima facie showing of abuse was established; challenges evidential rulings by the trial judge, as well as the weight placed on the allegedly "flawed" evidence, particularly the evidence gathered and presented by the Division and the opinion of defendant's expert; and refutes the credibility determinations made by the judge in assessing the experts' testimony. We have considered each of these arguments and find they lack merit.

The adjudication of an abuse and neglect complaint is governed by Title 9, N.J.S.A. 9:6-8.21 to -8.73. The statute 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, 171 (1999) (citing N.J.S.A. 9:6-8.8). An "abused or neglected child" is defined in N.J.S.A. 9:6-8.21(c), and the proofs must be established by a preponderance of evidence. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011). See also N.J.S.A. 9:6-8.46(b) ("In a fact-finding hearing (1) any determination that the child is an abused or neglected child must be based on a preponderance of the evidence and (2) only competent, material and relevant evidence may be admitted.").

Plaintiff maintains that once he presented a prima facie case of abuse, the burden shifted to defendant to establish non-culpability. This flawed argument incorrectly recites the application of burden shifting employed when an infant or helpless child, while in the care of a parent, suffers an unmistakable injury, such as a broken bone, or cracked skull, which was not the result of everyday activities. Thus, when an infant suffers injuries while in parental care, an inference of abuse and neglect arises and "'[t]he burden would then be shifted, and such defendant[-parents] 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) (quoting In re D.T., 229 N.J. Super. 509, 517 (App. Div. 1988)).

Burden shifting arises in circumstances where the abuse is narrowed to identified persons and places. In most instances, however, "the child is exposed to a number of unidentified individuals over a period of time, and it is unclear . . . exactly where and when the child's injuries took place," rendering burden shifting inappropriate. Id. 457, 468-73.

Guidance to a trial court conducting a fact-finding hearing is found in the statute:

a. If facts sufficient to sustain the complaint are established, the court shall enter an order finding that the child is an abused or neglected child and shall state the grounds for said findings.

b. If the proof does not conform to the specific allegations of the complaint, the court may amend the allegations to conform to the proof; provided, however, that in such case the respondent shall be given reasonable time to prepare to answer the amended allegations.

c. If facts sufficient to sustain the complaint under this act are not established, or the court concludes that its assistance is not required on the record before it, the court shall dismiss the complaint and shall state the grounds for the dismissal.

d. If the court makes a finding of abuse or neglect, it shall determine, based upon the facts adduced during the fact-finding hearing, and upon any other facts presented to it, whether a preliminary order pursuant to section 11 hereof is required to protect the child's interests pending a final order of disposition . . . .

[N.J.S.A. 9:6-8.50. (footnote omitted)]

These provisions, when viewed along with N.J.S.A. 9:6-8.46(b), make clear that generally the burden to establish abuse or neglect by a preponderance of the evidence rests at all times with the plaintiff. See also N.J. Div. of Youth & Family Servs. v. C.H., 428 N.J. Super. 40, 62 (App. Div. 2012) (stating that at a fact-finding hearing the Division bears burden of proof).

Here, plaintiff's allegations of abuse varied by time, place, and nature. In forming their opinions, plaintiff's experts combined pieces of information gathered over many years. In the process of doing so, they completely disregarded remaining facts, which refuted their theory of abuse. For example, the child's pediatrician had no concerns that abuse had occurred or was occurring and rationally diagnosed the child's injuries, illnesses or medical conditions. In an effort to prove an act of abuse against P.F., B.F. was repeatedly questioned by plaintiff's experts about the "fix the bridge game" he played with P.F., which was often benign. The nature of the game was portrayed as something sinister when recited by N.F. or Randy Greenwald, the psychological expert hired by N.F., and these facts became the only facts recited in plaintiff's case.

We conclude the circumstances here do not warrant burden shifting. There is no definitive act of abuse articulated; there is no specified time the abuse allegedly occurred; and importantly, the allegedly abused child is well able to articulate any interactions that occurred while in his father's care.3

In light of the sparse objective evidence, the determination to be made in this matter was heavily dependent on credibility assessments. Facts were presented by Division caseworkers, the child's pediatrician, N.F., plaintiff and other family members. Further, all parties presented expert testimony. Interestingly, not one expert evaluated both parents and the child; plaintiff's experts chose not to speak to P.F., and N.F. refused defendant's expert's request that he submit to an evaluation.

In his written opinion, Judge Haines thoroughly set forth his credibility findings. He not only explained what testimony he found credible, but also outlined why the testimony was most believable, and correspondingly, why he rejected contradictory testimony. We defer to these credibility determinations and reject as unfounded plaintiff's contentions of error. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007).

Plaintiff challenges Judge Haines's consideration of the pediatric records and recorded diagnosis rendered by B.F.'s treating physician, recorded after his full examination of the physical symptoms presented by the child at the time of treatment. Ironically, however, plaintiff has no difficulty incorporating these records, as reviewed by his experts, who lacked first-hand knowledge, into his effort to establish B.F.'s medical conditions which he claims resulted from P.F.'s abusing acts. Moreover, plaintiff presents no legal basis supporting his challenge to the use of the child's medical records. He merely challenges the court's consideration.4

We also find Judge Haines did not abuse his discretion in admitting the Division's authenticated records. See N.J.S.A. 9:8.46(a), N.J.R.E. 803(c)(6), N.J.R.E. 801(d), and R. 5:12-4(d). The Division, on behalf of the State, fulfilled the statutorily authorized parens patriae role and investigated claims B.F. was abused. In doing so, N.F. and B.F. were interviewed and observed on several occasions. So too, P.F. and B.F. were interviewed and observed. The Division's representative identified the records, testified they were contemporaneously prepared by the caseworkers in the course of his or her responsibilities, thus, establishing them as business records. N.J.R.E. 803(c)(6), N.J.R.E. 801(d). Plaintiff's assertion that the contemporaneous requirement was not met because the original handwritten notes were destroyed once transcribed, is unfounded and rejected. Further, plaintiff's contention that the documents should have been excluded because they did not prove abuse and cannot be used to rebut a prima facie showing of abuse is spurious.

For the reasons stated, we reject as meritless the evidential challenges to the admission of the child's pediatric and the Division's records. We further find meritless plaintiff's suggestion the judge improperly weighed this evidence. R. 2:11-3(e)(1)(E).

Following our review, we determine Judge Haines's factual findings, which were made after carefully considering and sifting through the evidence presented in this lengthy hearing, were fully supported by the credible evidence in the record. We discern no error in the admission of evidence the judge relied upon or in the application of guiding legal authorities to the facts presented. The evidence offered by plaintiff was rejected as insufficient and not credible. On the other hand, P.F.'s credible facts and expert evidence were found to refute the inferences sought to be drawn by plaintiff's discredited experts. Therefore, we will not disturb the judgment dismissing plaintiff's complaint.

Affirmed.

1 On June 29, 2012, the Governor signed into law A-3101, reorganizing the Department of Children and Families. The Division of Youth and Family Services was renamed and is now known 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 N.F. filed an application for interpleader, as a co-plaintiff. The court denied that motion, but granted her alternative motion, to be named a defendant solely for the purpose of disposition.

3 Plaintiff additionally argues for the first time on appeal that the court erred as an adverse inference should have been drawn from the fact defendant did not testify. Plaintiff did not raise this argument below; therefore, we decline to consider it on appeal. Dynasty, Inc. v. Princeton Ins. Co., 165 N.J. 1, 18 (2000).

4 Review is impeded by the fact that record references included in plaintiff's brief did not coincide with the issues raised and did not include the documents he suggests were deemed inadmissible by the court (plaintiff's exhibit 7A).