Opinion
DOCKET NO. A-5695-12T1
01-30-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. D.K., Defendant-Appellant. IN THE MATTER OF N.K., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Brian D. Driscoll, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jaime Millard-Tindall, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Margo E.K. Hirsch, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and O'Connor. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FN-08-0118-12. Joseph E. Krakora, Public Defender, attorney for appellant (Brian D. Driscoll, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jaime Millard-Tindall, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Margo E.K. Hirsch, Designated Counsel, on the brief). PER CURIAM
Defendant, D.K. (father), appeals an order entered by the Family Part finding he abused his son, Nevin, in violation of N.J.S.A. 9:6-8.21(c)(1), as well as an order prohibiting the father from having any contact with Nevin until he turns eighteen-years of age. Nevin was born in 2012 and is presently three-years old. We affirm.
We refer to the child by a fictitious name to protect his privacy and for ease of reference.
I
On January 23, 2012, the Division of Youth and Family Services (the Division) was contacted when it learned five-month old Nevin was hospitalized for multiple injuries. At the time, the child was living with his mother, C.K. (mother), but had parenting time with the father within a week of his admission to the hospital. On January 31, 2012, the Division filed a verified complaint for the care, custody, and supervision of the child pursuant to N.J.S.A. 9:6-8.21, N.J.S.A. 30:4C-12, and Rule 5:21-1, alleging both parents had abused Nevin. On this date the court granted the Division physical and legal custody of the baby.
At the time, the Division was known as the Division of Youth and Family Services. Effective June 29, 2012, the Division of Youth and Family Services was renamed the Division of Child Protection and Permanency.
During the fact-finding hearing held in May and June 2012, an investigator from the prosecutor's office testified she had been contacted by the Division on January 24, 2012, because Nevin had been diagnosed with having multiple rib fractures, a fractured femur, and a subdural hematoma. Child abuse was the suspected cause of the injuries.
The investigator interviewed both parents but they denied knowledge of how the baby was injured. During a subsequent interview, however, the father told the investigator that the baby fell off a bed while he was caring for him and proffered Nevin may have been injured then. The investigator responded that it was implausible the child's injuries were sustained in the manner the father suggested. The father then asked the investigator if the child would be returned to the mother if he admitted to injuring the baby. She told the father she had no control over whether the baby would be returned to the mother if he admitted to causing the injuries.
Later, the father admitted to the investigator that, while he was taking care of the baby on January 19, 2012, he picked up the baby "around the ribs" and hurled him across the room into a dresser. The father observed the baby's eyes roll back into his head and picked him up to see if he was still breathing. Satisfied that he was, the father then threw the baby into a "Pack 'n Play." The father also disclosed that when he had parenting time with the baby two days later, he punched the baby in the chest, picked him up by his neck, and shook him in order to make him stop crying.
The investigator also testified at the fact-finding hearing that the father had previously been substantiated by the Division for abuse against his other child for pushing a stroller in which his child was seated into traffic. On another occasion, he punched this child in the face.
Philip Scribano, D.O., board certified in both general and child abuse pediatrics, also testified. He treated Nevin during his hospitalization, and stated the baby suffered head trauma which caused a cerebral hemorrhage, and sustained fractures of ribs four through ten on his right side. He opined that the injuries were non-accidental and consistent with how the father reported the child was injured. Moreover, other possible causes of Nevin's condition were ruled out. The child required hospitalization for approximately one week and, at one point, required the insertion of a shunt into his brain to relieve the pressure caused by the subdural hematoma.
The father did not call any witnesses. At the conclusion of the hearing, the court noted that the investigator and doctor were credible, and found the Division proved by a preponderance of the evidence that the father inflicted physical injury upon the baby that created a substantial risk of death and, thus, under N.J.S.A. 9:6-8.21(c)(1), the father had abused the child.
The record reveals the father was charged with committing two counts of second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and three counts of second degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Those charges were still pending at the time of the fact-finding hearing. On April 23, 2013, a jury found the father guilty of one count of second degree aggravated assault and two counts of second degree endangering the welfare of a child. On June 28, 2013, the father was sentenced to an aggregate of twenty-three years, subject to an eighty-five percent period of parole ineligibility.
The Division argues that the convictions for aggravated assault and endangering the welfare of child preclude the father from challenging the findings of the trial court under the doctrine of collateral estoppel. See N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 114-16 (2011). Because the requisite documents from the criminal proceeding that would have enabled us to consider the applicability of this doctrine were not in the record, we were unable to decide this issue.
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On June 10, 2013, the Division sought an order for protection for Nevin pursuant to N.J.S.A. 9:6-8.55. This statute states in pertinent part:
The court may make an order of protection in assistance or as a condition of any other order made under this act. The order of protection may set forth reasonable conditions of behavior to be observed for a specified time by a . . . parent . . . responsible for the child's care . . . . Such an order may require any such person: a. To stay away from . . . the child . . . .The court entered an order prohibiting the father from having any contact with the child until Nevin turns eighteen years of age, although the order contained a provision stating that the father could "file for visitation."
[N. J.S.A. 9:6-8.55.]
II
Title Nine defines, in part, an abused or neglected child as one 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)(1).]
The burden of proof rests with the Division, which must show, by a preponderance of competent, material and relevant evidence, that the child was abused or neglected. N.J.S.A. 9:6-8.46(b); N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 615 (App. Div. 2010). If the Division meets that burden, the court "shall enter an order finding that the child is an abused or neglected child . . . ". N.J.S.A. 9:6-8.50; see also N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002). In reviewing the factual findings and conclusions of a trial judge,
we are obliged to accord deference to the trial court's credibility determination and the judge's "feel of the case" based upon his or her opportunity to see and hear the witnesses. We are not to disturb the judge's findings of fact unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice."
[N.J. Div. of Youth and Family Servs. v. R.L., 388 N.J. Super. 81, 88-89 (App. Div. 2006) (quoting Cesare v. Cesare, 154 N.J. 394, 411-413 (1998)), certif. denied., 190 N.J. 257 (2007).]
The father asserts that he fabricated his culpability after he asked the investigator whether Nevin would be returned to his mother if he admitted to injuring him. The argument is nonsensical and unfounded in the record. First, there is no evidence the admissions he made to the investigator were false. Second, there is no evidence the father believed the child would be returned to the mother if he told the investigator that he had injured the child. To the contrary, before the father confessed, the investigator told him that, even if he admitted to injuring Nevin, she could not say the baby would be returned to the mother. We are satisfied the Division proved by a preponderance of the evidence that the father abused Nevin as defined under N.J.S.A. 9:6-8.21(c)(1).
The father next contends that the order of protection must be vacated because prohibiting him from having contact with Nevin until he is eighteen years of age "exceeds the statutory limits set forth in N.J.S.A. 9:6-8.55." We disagree. While the court is required to impose reasonable conditions for a specified time, there are no time limitations set forth in the statute. Here, the court ordered the father to stay away from the child until he is eighteen years of age. Given the cruel and brutal acts of abuse the father inflicted upon his five-month old son, we cannot say the restraints are unreasonable. Further, the father is not without recourse. He is not prohibited from filing a motion for visitation in the future.
To the extent that any arguments raised by the father have not been explicitly addressed in this opinion, it is because we are satisfied that the arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION