Opinion
DOCKET NO. A-0938-11T4
05-22-2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. K.N., Defendant-Respondent, and D.G., Sr., Defendant. IN THE MATTER OF D.G., Jr., Minor-Appellant.
Kelly M. Donegan, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Donegan, of counsel and on the briefs). Stephanie Anatale, Deputy Attorney General, argued the cause for respondent New Jersey Division of Youth and Family Services (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Anatale, on the brief). Amy B. Klauber argued the cause for respondent K.N. (Klauber & Klauber, LLP, attorneys; Ms. Klauber, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, Alvarez and Skillman.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FN-13-0176-09.
Kelly M. Donegan, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Donegan, of counsel and on the briefs).
Stephanie Anatale, Deputy Attorney General, argued the cause for respondent New Jersey Division of Youth and Family Services (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Anatale, on the brief).
Amy B. Klauber argued the cause for respondent K.N. (Klauber & Klauber, LLP, attorneys; Ms. Klauber, on the brief). PER CURIAM
In this matter, the Law Guardian on behalf of a minor, D.G., Jr., appeals a Family Part judgment in a Title Nine proceeding that the child's mother, K.N., did not engage in acts of abuse and neglect. N.J.S.A. 9:6-8.21 to -8.73. We conclude that the conduct constituted abuse and neglect within the meaning of the statute and therefore reverse.
Leave to appeal was granted to the Law Guardian on October 25, 2011.
Prior to D.G., Jr.'s birth, the Division of Youth and Family Services (the Division) received one referral regarding K.N. On September 12, 2008, the Monmouth Medical Center (MMC) reported that K.N., then nearly seven months into her pregnancy, admitted to using heroin three months prior to her visit to the clinic and reported that she had been taking methadone for the past three months. The file was closed after the Division confirmed that K.N. was attending the Jersey Shore Addiction Services Methadone Clinic, participating in parenting classes there, receiving prenatal care, and had a family support system.
On December 17, 2008, MMC again contacted the Division. D.G., Jr., had been born the prior day and K.N. acknowledged a history of using twenty bags of heroin daily. D.G., Jr., weighed seven pounds, seven ounces at birth, and once released from the hospital, was cared for by his parents in their home.
On February 4, 2009, MMC called in a referral that D.G., Jr., had gained only a pound since birth, thereby raising concerns that he suffered from "failure to thrive," and had been admitted with a fractured left arm. The parents allegedly noticed the injury three or four days prior, but K.N. claimed to have forgotten that her son's arm was swollen until she brought him in to her doctor's office for an unrelated medical issue.
X-rays revealed that not only was D.G., Jr.'s left radium "badly broken[,]" he had multiple rib fractures in different stages of healing as well as a right clavicle fracture. The emergency room pediatrician informed the Division that it was not possible that D.G., Jr., had been fed four ounces of formula every three hours as the parents claimed, because, if so, he would have acquired baby "pudge" and he had none. The physician believed that the child's condition was only consistent with child abuse. The child remained at the hospital and on February 9, 2009, the Division took D.G., Jr., into protective custody pursuant to N.J.S.A. 9:6-8.28 and 9:6-8.30.
When later interviewed by the Monmouth County Prosecutor's Office about the child's fracture, K.N. said that D.G., Sr., noticed that the baby's left arm looked flimsy and swollen four days before she took him to MMC. She had forgotten about the injury and delayed obtaining medical care because she did not think it was that severe. K.N. admitted that she cared for the child eighty percent of the time and D.G., Sr., cared for him twenty percent of the time, and that for the seven days prior to the hospital visit she and D.G., Sr., were his sole caretakers.
When interviewed, D.G., Sr., said that K.N. usually watched the baby because he worked. He too indicated that he noticed the broken arm on February 1 or 2, 2009.
K.N. and D.G., Sr., were indicted for second-degree child endangering, N.J.S.A. 2C:24-4(a). They ultimately entered guilty pleas to the lesser third-degree offense. On September 24, 2010, K.N. was placed on probation.
The Title Nine proceedings culminated in a fact-finding hearing conducted over several days, from March 2, 2011 to June 30, 2011. The trial judge issued a written opinion finding D.G., Sr., had engaged in abuse or neglect, but that K.N. had not.
Dr. Steven Kairys, the Director of the Child Protection Program at Jersey Shore University Medical Center, prepared a report admitted into evidence on behalf of the Division and testified as its expert medical witness. He examined the child and reviewed his x-rays, eliminating the possibility that D.G., Jr., suffered from a bone disease which might have caused the multiple fractures. Nor did he consider it tenable that, as the parents claimed, the family dog might have jumped on the baby, thereby causing his injuries. According to Kairys, D.G., Jr., had been physically abused on at least three separate occasions. Kairys opined that the parents' description of the baby's feeding habits was inconsistent with his weight gain since birth.
Kairys also opined that the break to the baby's left arm could have occurred anywhere from a week to ten days prior to the date he was brought to the hospital. When D.G., Jr., was seen at MMC, his arm was visibly bruised and he cried when it was moved. The fracture was major, across the central part of the bone, and painful. That significant break could have only occurred from a blow to the arm or a very hard squeeze with some angulation. Every time he was changed or picked up, at a minimum, the baby would have been uncomfortable from pain from the fracture.
Additionally, one of the child's clavicles was broken, he had rib fractures, and small corner fractures along the edges of his leg bones. Kairys explained these "corner fractures" were indicative of vigorous shaking or flailing which resulted in the chipping of little pieces of bone. To fracture the ribs of an infant requires holding the baby while squeezing with so much force that the ribs bend and finally break in one or two places. D.G., Jr., had fractures of the left and right tenth and eleventh rib in the back, as well as the seventh, eighth, and ninth ribs on the left. In Kairys' opinion, the fractures of the tenth and eleventh ribs could be anywhere from three to six weeks old while the other rib fractures had occurred within a two to three-week range. He noted that because infant bones are so flexible, they typically handle falls better than do children or adults.
Kairys also testified that D.G., Jr., had dropped from the fifteenth percentile for weight at birth to below the fifth percentile when admitted to the hospital. The child should have gained at least two to three pounds between birth and the time he was hospitalized, and his low weight indicated that he was malnourished. While hospitalized for seven days, the child gained well over a pound.
D.G., Sr., stipulated that he abused drugs while D.G., Jr., was in his care. He used methadone as soon as he awakened in the morning, and K.N. would use with him after he got home from his job. D.G., Sr., said that he worked six days a week, and that the baby was in K.N.'s care during that time.
K.N.'s trial testimony differed from her initial statements to the Monmouth County Prosecutor's Office. At trial, she said that she, D.G., Sr., and D.G., Jr., were together eighty percent of the time and that the child was alone with one or the other parent the remaining time. The only other people who cared for D.G., Jr., were D.G., Sr.'s sister and her mother. K.N. said D.G., Sr., fed the baby for the most part, and that she only bathed the baby once.
On the stand K.N. acknowledged her guilty plea, but claimed her decision not to obtain medical treatment for the child was based upon D.G., Sr.'s opinion that the injury to the arm was not serious. She admitted, however, that even after being told the child had a broken arm and required immediate attention at a hospital emergency room, that it took her an hour and one-half to transport her son to the MMC emergency room.
K.N. claims that she had brought the child with her that morning to an appointment at Jersey Shore Addiction Services, where she "begged" a nurse to look at her child's arm, but then drove him to the Monmouth Family Heath Center (MFHC) to obtain a treatment for thrush in his mouth. While there, she was told the child required immediate hospital emergency room care. Nonetheless she declined transportation in an ambulance, and before taking the child to the hospital, sat in her car and smoked a cigarette. She also made some phone calls, fed the child for fifteen to twenty minutes, and did some text messaging.
MMC's pediatric head nurse testified that upon arrival, K.N. did not seem troubled by the fact that D.G., Jr., could not move his arm. She told staff that his arm had been swollen for four days. The drive between the MFHC and MMC takes five minutes, yet the MFHC pediatric head nurse confirmed that K.N. did not arrive at the hospital until an hour and one-half after the MFHC visit.
The trial judge knew that K.N. had entered a guilty plea to child endangerment, been placed on probation, and received 364 days of county jail time. Despite this, he found K.N.'s explanation that she had limited contact with the child to be credible. The judge concluded that D.G., Sr., "alone caused the injury." In his judgment, the Division did not prove that K.N. had any involvement in causing D.G., Jr.'s rib and clavicle fractures, or the corner fractures on his legs. The judge, mindful that K.N. had no responsibility to prove nonculpability, instead found "[t]he scales of justice . . . to remain[] in equipoise[.]" He rejected the Division's position that the baby suffered from failure to thrive, and said the suggestion that the child was malnourished was a mere "afterthought."
The trial judge fully credited Kairys' explanation of the deliberate conduct necessary to cause the multiple bone breaks suffered by the child, and accepted as true Kairys' statement that the fractures resulted from more than one incident. Despite this expert testimony, the judge decided, because he believed that K.N. was only minimally involved in D.G., Jr.'s care, that she had not abused or neglected the baby. The judge made the further finding that the Division did not prove K.N. delayed in securing medical treatment for D.G., Jr. The Law Guardian sought leave to appeal immediately after the decision was rendered.
The scope of our review of a Family Part judge's factual findings is ordinarily highly deferential, Cesare v. Cesare, 154 N.J. 394, 413 (1998), particularly as to those findings reached based on credibility determinations. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). But where we are convinced that factual findings are so manifestly unsupported by or inconsistent with the competent, relevant, and reasonable credible evidence as to offend the interests of justice, we will exercise our original factfinding jurisdiction. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974); Cesare, supra, 154 N.J. at 411-12. A trial judge's legal conclusions are always subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Governed by these standards, we conclude that the trial court's factual findings are simply unsupported by the evidence, and are actually internally inconsistent. If the trial judge accepted Kairys' testimony in its entirety, which he did, he could not logically have concluded that K.N. was credible. Kairys categorically found the parents' explanations, including that given by K.N., for the child's fractures and state of malnourishment, to be medically impossible. And K.N.'s trial testimony greatly varied from her earlier statements to the Prosecutor's Office.
Furthermore, during the trial K.N. readily admitted to using unprescribed methadone while caring for her newborn. K.N. also agreed she substantially delayed taking the child to the emergency room between the time she was told at MFHC his left arm was broken and when she finally arrived at the hospital emergency room an hour and one-half later. This latter conduct alone demonstrated indifference to the child's medical needs and suffering. It constitutes abuse and neglect within the meaning of the statute.
Kairys' testimony, which the judge entirely credited, clearly and unequivocally established that the child suffered from failure to thrive. Accordingly, the testimony was far from an "afterthought." Given the child's rapid weight gain while hospitalized, K.N.'s testimony regarding the frequency with which she fed the baby conflicted with the medical proofs, and presented another instance of abuse and neglect. See N.J. Div. of Youth & Fam. Servs. v. K.M., 136 N.J. 546, 552-53 (1994) (basing abuse and neglect finding in part of child's "failure to thrive as a result of improper feeding . . . .").
Thus it is clear that the judge's findings are not supported by adequate, substantial, and credible evidence; in fact, contrary legal determinations should have been reached as a result. The judge's legal determination that the Division had not met its burden of proof was erroneous.
The judgment as to K.N. is so inconsistent with the "competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms, supra, 65 N.J. at 484.
Lastly, K.N.'s guilty plea to endangering the welfare of a child itself means she made an admission upon which the court should have relied "as affirmative, substantive evidence . . . ." State Farm Fire & Cas. Co. v. Connolly, 371 N.J. Super. 119, 125 (App. Div. 2004) (quoting State Dep't of Law & Pub. Safety, 142 N.J. 618, 667 (1995)), certif. denied, 192 N.J. 69 (2007).
We therefore agree with the Law Guardian that the interests of justice were not served by the judge's findings or legal conclusions. The competent, relevant, and reasonable credible evidence leads inescapably to the determination that K.N. engaged in conduct constituting abuse and neglect within the meaning of N.J.S.A. 9:6-8.21(c).
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION