Opinion
DOCKET NO. A-2429-13T1
03-16-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. J.W., Defendant-Appellant, and K.C., Defendant. IN THE MATTER OF A.C., a Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z.H. Abbasi, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Nicole Laferriere, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.C. (James J. Gross, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Leone. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FN-15-148-13. Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z.H. Abbasi, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Nicole Laferriere, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.C. (James J. Gross, Designated Counsel, on the brief). PER CURIAM
Following a fact-finding hearing, Judge Madelin F. Einbinder entered an order on June 21, 2013, determining that J.W. (Jane) abused or neglected her then twenty-month-old child, A.C. (Audrey). Jane appeals from that order, claiming the Division of Child Protection and Permanency presented insufficient evidence to support the judge's finding. The child's Law Guardian urges us to affirm the findings. After careful consideration of the record and for the reasons that follow, we affirm.
Pseudonyms are used to protect the identity of the child and for ease of reference.
I.
Audrey was born to Jane and K.C. in April 2011. Jane and Audrey lived with Jane's mother, Y.W. (Yolanda); K.C. lived elsewhere and had limited contact with Audrey. Yolanda's relationship with her daughter was strained, and they argued frequently about Jane's care of Audrey. Yolanda reported that Jane would take Audrey out in the stroller and come back smelling of marijuana. Yolanda once found a marijuana joint in the child's stroller.
In early December 2012, Jane moved out of Yolanda's home and took Audrey with her. On December 19, 2012, Jane returned briefly, and Yolanda noticed bruising on the child's neck, face, and thigh. She questioned Jane, who explained that Audrey fell and hit her face on a chair. Jane left the child in Yolanda's care for a few hours that day. When Yolanda gave her a bath, a clump of Audrey's hair fell out, and the child complained of pain to her head. So sensitive was the area that Yolanda had someone support the child's head when changing her diaper.
On December 20, 2012, Jane again left Audrey in Yolanda's care. Yolanda was concerned that Audrey's injuries could have been caused by abuse and took her to her pediatrician, Dr. Hernandez. After examining the child, Dr. Hernandez noted that the facial bruises appeared accidental but was concerned with the bruise to Audrey's neck as this was an "odd location" for an accidental injury. Dr. Hernandez referred the matter to the Division.
Caseworker Maureen Gregg was dispatched and interviewed Yolanda and her boyfriend, R.A. (Robert), who resides with Yolanda. Gregg testified at the fact-finding hearing and introduced two of her investigation summary reports. Robert and Yolanda told Gregg that they were concerned about Audrey's injuries and were doubtful of Jane's explanation that the child fell into a chair.
Gregg then interviewed Jane, who explained that Audrey suffered the injury to her eye earlier that morning when she fell into a bedframe at Jane's boyfriend's home. Jane claimed the bruise to Audrey's forehead occurred a few days earlier when she fell off a bed and hit her head on the floor. When questioned about the marks on Audrey's neck, Jane had no explanation. When questioned about the child's hair falling out, Jane "minimized the situation" and stated that it was not a "big deal." She accused Yolanda of exaggerating the extent of the child's pain. Jane agreed to a safety protection plan proposed by Gregg, whereby Audrey would remain in the temporary care of Yolanda.
On the following day, Audrey was examined by Dr. Steven Kairys, Chairman of Pediatrics at Jersey Shore University Medical Center (JSUMC) and Director of the JSUMC Child Protection Center. At the fact-finding hearing, Dr. Kairys was accepted by the court as an expert in the field of physical child abuse without objection. Dr. Kairys found distinct areas of bruising:
Well, there were . . . three or four areas of bruising. There was . . . a bruising on the face that was . . . previously discussed. There was bruising above her left eye; red bruising being probably anywhere from two to five days old, something in that age range; also a bruise that was more linear under the left eye, about an inch.
And then there was the, the bruising of the, the right side of the neck, both the lateral, and, . . . towards the back of the neck that was also red about the same age range, also anywhere from about two to three to about four to five days old; somewhere in that, in that range.
Dr. Kairys found that it was possible that the bruising around the eye could have resulted from the child running into a bedframe as the mother explained. He was concerned that the bruising to the child's neck may have been an "inflicted injury." He explained:
The — but there really was no story for the, for the bruising of the neck. And that's a very unusual area to bruise. It's, it's well protected. It's, you know, you don't get that from swelling or running into an object. That usually occurs by, you know, getting hit or having some kind of an [affliction] in that area. So I was, I was concerned that that was more, more concerning for the possibility of an inflicted injury.
On cross-examination, Dr. Kairys noted that the bruising to the child's neck was in two areas and opined that the probability that these bruises could have been caused by something other than physical abuse was "very, very unlikely."
Jane called Dr. David Brandwein who was accepted, without objection, as an expert in the area of risk assessment for child abuse. Dr. Brandwein conducted a forensic risk assessment of Jane on June 13, 2013. He interviewed Jane and examined investigation reports, case documents, and photographs. He concluded that Jane's potential for physical child abuse was low.
Jane also called Dr. William Manion, a forensic pathologist, who was accepted as an expert in the area of child abuse and neglect. Dr. Manion did not conduct a physical examination of Audrey but examined documents, reports, and photographs of her injuries. Dr. Manion concluded that there was not sufficient evidence to find physical abuse or that Audrey's injuries were inflicted. He based his conclusion on the lack of a "pattern of injuries." On cross-examination, Dr. Manion was shown photographs of Audrey's injuries and remarked that the copy was "a little bit cleaner" than the one he had used to make his diagnosis.
Finally, Jane testified at the hearing and denied that she used physical discipline on Audrey and never grabbed her by the neck. She testified that the injuries to Audrey's neck had been possibly caused by the child's car seat.
At the conclusion of the hearing, Judge Einbinder found that the Division had proven by a preponderance of the evidence that the bruising to the front and back of Audrey's neck was caused by the actions of her mother, Jane. The judge relied on Dr. Kairys's "very clear" report and rejected the conclusion of Dr. Manion that the injury to Audrey's neck was a linear mark more indicative of a scratch. The judge also accepted Dr. Kairys's conclusion that a car seat could not have caused the injury as Jane had suggested.
The judge noted that Dr. Manion did not examine Audrey in person but relied on photographs and reports to form his conclusion. The four photographs introduced at trial were not of good quality, and the injuries that were observed by Dr. Kairys when he examined the child were not readily apparent in the photographs.
II.
Our review of the trial judge's factual finding of abuse or neglect is limited, and we defer to the court's determinations "when supported by adequate, substantial, credible evidence." N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)). The trial court is best suited to assess credibility, weigh testimony, and develop a feel for the case, and we extend special deference to the Family Part's expertise. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010). We will accord deference unless the trial judge's factual findings went so wide of the mark that a mistake must have been made. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quotation marks omitted).
We first address Judge Einbinder's acceptance of Dr. Kairys's conclusions and her rejection of the testimony proffered by Dr. Manion. It is axiomatic that a fact finder at trial is free to accept, reject, or adopt all of an expert's opinion. See State v. R.G.D., 108 N.J. 1, 16 n.7 (1987) ("[E]xpert testimony need not be given greater weight than other evidence or than it otherwise deserves in light of common sense and experience."). Dr. Manion did not have the opportunity to actually view the child's injuries in person, as Dr. Kairys did. The photographs used by Dr. Manion were of poor quality and did not accurately depict the bruises that Dr. Kairys used to form his conclusion. Thus, we conclude that Judge Einbinder adequately considered the expert testimony and evidence proffered by defendant and provided a sound and convincing reason for rejecting it. That determination is not one we should disturb. See N.J. Div. of Youth & Family Servs. v. G.L. 191 N.J. 596, 605 (2007).
We have carefully considered the record and find no reason to disturb the factual findings and conclusions of Judge Einbinder, which are supported by substantial credible evidence in the record.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION