DCPP VS. S.C. AND D.R., IN THE MATTER OF S.C., JR. (FN-01-0389-16, ATLANTIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED) ( 2019 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-3007-17T2
A-3088-17T2
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
S.C. and D.R.,
Defendants-Appellants.
_____________________________
IN THE MATTER OF S.C., Jr.,
a Minor.
_____________________________
Submitted November 14, 2019 – Decided November 21, 2019
Before Judges Haas and Enright.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Atlantic County,
Docket No. FN-01-0389-16.
Joseph E. Krakora, Public Defender, attorney for
appellant S.C. (Jared Isaac Mancinelli, Designated
Counsel, on the briefs).
Joseph E. Krakora, Public Defender, attorney for
appellant D.R. (Dana A. Citron, Designated Counsel,
on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Robert George Amrich, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Damen John Thiel, Designated
Counsel, on the brief).
PER CURIAM
Defendants S.C. and D.R. 1 appeal from the October 24, 2017 Family Part
decision2 determining that they abused S.C.'s seven-year-old son, S.C., Jr.
(Steven), by D.R. twisting his ear until it bled and had to be drained multiple
times, and by both defendants striking him in the face and causing him to suffer
bruises and contusions. Defendants assert there was insufficient evidence in the
1
We refer to defendants by initials, and to their child by a fictitious name, to
protect their privacy. R. 1:38-3(d)(12). S.C. is the child's biological father.
D.R. is S.C.'s girlfriend. D.R. has three children of her own, and these chil dren
are not involved in the current appeal.
2
This decision became appealable as of right after the trial court entered a final
order terminating the litigation on January 29, 2018.
A-3007-17T2
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record to support Judge W. Todd Miller's finding that this conduct constituted
abuse under N.J.S.A. 9:6-8.21(c)(4)(b). D.R. also contends her due process
rights were violated by the procedures a different judge followed in conducting
an in camera interview with Steven prior to the fact-finding hearing. The Law
Guardian supports Judge Miller's finding that the Division of Child Protection
and Permanency (Division) met its burden of proving abuse by a preponderance
of the evidence. Based upon our review of the record and applicable law, we
affirm for the reasons articulated by Judge Miller in his thorough and thoughtful
written opinion of October 24, 2017.
For the six years prior to 2016, Steven lived with his paternal
grandmother. In 2016, he began to reside with S.C., D.R., and D.R.'s three
children. In June 2016, the Division filed a complaint for care and custody of
Steven after he appeared at school with extensive injuries to his face, ears, head,
and chest. Although the Division was unable to establish abuse or neglect at
that time, the court granted its application for care and supervision on August
13, 2016.
One week later, a doctor's office contacted the Division to report that
Steven had been at the emergency room on August 19, 2016 because his left ear
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was extremely swollen. The next day, a nurse called the Division after Steven
reported that D.R. had beaten him on multiple occasions.
The Division conducted an investigation on August 21, and found that the
child had an enlarged left ear that was bleeding. There was a bruise under
Steven's eye, which was the size of a silver dollar. The child also had a linear
bruise underneath his right eye and on the top of the right side of his forehead.
Steven told the Division workers that D.R. inflicted these wounds by pinching
and twisting his ear and by striking him in the face. The workers took
photographs of Steven's injuries and they were admitted in evidence at the
hearing.
The child stated that S.C. told him to tell the doctors the bruises were the
result of falling off his scooter, and that his ear injury was caused by a bug bite.
Steven's treating physician, Dr. David McBride, informed the workers that the
child had a great deal of blood in his ear that needed to be drained. Dr. McBride
stated it was difficult for him to tell if the bruises, cuts, and ear injury were from
physical abuse.
Steven's grandmother stated she picked up Steven on August 19, and saw
his injuries. The child told her that D.R. had punched him and pulled his ear.
The grandmother had previously scheduled a court hearing to s eek custody of
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Steven for August 20 and following that hearing, the court granted custody of
the child to her, with defendants having only supervised weekly visitation.
When interviewed by the Division workers, S.C. and D.R. claimed that Steven
fell off his scooter a few days before his emergency room visit, and denied
causing the child's injuries.
After the custody hearing, Steven told a Division worker that he hurt his
ear by falling off his scooter, and got the bruises on his head because he fell
against a table while putting on his flip flops. At that point, however, the child
did not know that his grandmother would be taking custody of him. When the
child spoke a few days later to Dr. Stephanie Lanese of the New Jersey CARES
Institute, he told her that he lied because he was afraid D.R. would hurt him if
he told the workers the truth about what happened to him. Steven reported that
D.R. hurt his ear by twisting it and that both defendants had hit him in the face.
Dr. Lanese, who the Division qualified as an expert in child abuse
pediatrics, opined that Steven's ear injury was entirely consistent with his claim
that D.R. had twisted it. As Judge Miller found, Dr. Lanese described his
condition "as [a] cauliflower ear that occurs from blunt trauma to the ear. The
injury is common with wrestling or boxing. The inside ridges inside the ear are
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severely impacted and the entire ear swells. It can cause long-term damage to
the ear if not treated properly."
Dr. Lanese also concluded that Steven's bruises could not have been
caused by falling off a scooter or hitting his head on a table. This was so because
the child had "no preventative or defensive abrasions on his forearms or knees
or shins that are acute and of similar age to [the wounds] to his face and ears."
It was also highly unusual that there were bruises on both sides of Steven's face,
but no injury to his nose. Dr. Lanese also concluded that the psychological
impact of the beatings might have even more of a significant impact on the
child's well-being than the physical injuries he sustained.
Prior to the fact-finding hearing, a different judge conducted an in camera
interview with Steven at S.C.'s request. D.R.'s attorney also consented to the
interview, and both defendants were given the opportunity to submit questions
for the judge to ask. Neither defendant took advantage of this opportunity and,
when the judge met with the child, the only attorney who appeared in court was
the Law Guardian. Steven told the judge D.R. had twisted his ear and that both
defendants struck him in the face.
Defendants did not testify at the hearing, and did not present an expert
witness to counter Dr. Lanese's testimony that Steven was a victim of physical
A-3007-17T2
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abuse. Instead, S.C. called Dr. McBride as a fact witness. Dr. McBride testified
that he did not believe that the ear injury was caused by twisting or pinching
because the child had other injuries to his face that were not caused in that
fashion. However, Dr. McBride admitted he merely treated Steven's injuries,
and did not investigate their cause, preferring to "let the authorities do their job."
S.C. also called a Division worker to testify that Steven reported in October
2014 that his grandmother would punish him by striking him with a belt.
However, the worker stated that the child had no marks or bruises consistent
with this claim.
In his lengthy written decision, Judge Miller found the Division had
established by a preponderance of the evidence that defendants abused Steven
when D.R. twisted and pinched his ear, causing it to swell and bleed, and when
both defendants left bruises on his face by punching him. In so ruling, the judge
found Dr. Lanese's uncontradicted expert testimony "to be very trustworthy and
credible." This appeal followed.
On appeal, both defendants argue the Division failed to prove by a
preponderance of the evidence that they caused Steven's injuries. Instead, they
assert the child sustained a cauliflower ear, and bruises to both sides of his face,
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but no defensive or preventative injuries, from falling off his scooter. 3 We
disagree.
Our task as an appellate court is to determine whether the decision of the
family court is supported by substantial credible evidence in the record and is
consistent with applicable law. Cesare v. Cesare, 154 N.J. 394, 412 (1998). We
owe particular deference to a trial judge's credibility determinations and to "the
family courts' special jurisdiction and expertise[.]" Id. at 413. Unless the
judge's factual findings are "so wide of the mark that a mistake must have been
made[,]" they should not be disturbed, even if we would not have made the same
decision if we had heard the case in the first instance. N.J. Div. of Youth &
Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting C.B. Snyder Realty,
Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div. 1989)). "It is
not our place to second-guess or substitute our judgment for that of the family
court, provided that the record contains substantial and credible evidence to
support" the judge's decision. N.J. Div. of Youth & Family Servs. v. F.M., 211
N.J. 420, 448-49 (2012).
3
In the alternative, defendants claim that the child's grandmother ei ther caused
the injuries or persuaded Steven to lie and say that defendants were responsible.
This argument lacks sufficient merit to warrant further discussion in this
opinion. R. 2:11-3(e)(1)(E).
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Through the admission of "competent, material and relevant evidence,"
the Division must prove by a preponderance of the evidence that the child was
abused or neglected. N.J.S.A. 9:6-8.46(b). In pertinent part, N.J.S.A. 9:6-
8.21(c)(4)(b) defines an "abused or neglected child" as:
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 [or
her] parent or guardian . . . to exercise a minimum
degree of care . . . 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[.]
Each case of alleged abuse "requires careful, individual scrutiny" and is
"generally fact sensitive" and "idiosyncratic." N.J. Div. of Youth & Family
Servs. v. P.W.R., 205 N.J. 17, 33 (2011). Both the nature of the injury inflicted
and the conduct should be reviewed within the context of the family's
circumstances at that moment. See Dep't of Children & Families, Div. of Youth
& Family Servs. v. C.H., 416 N.J. Super. 414, 416 (App. Div. 2010).
Here, the evidence was overwhelming that defendants caused Steven's
serious injuries. As Dr. Lanese testified without contradiction, if the child had
fallen off a scooter, he would have sustained defensive injuries from trying to
break his fall. Instead, the nature of Steven's injuries were entirely consistent
A-3007-17T2
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with his explanation to Dr. Lanese that D.R. caused his cauliflower ear by
twisting and pinching it, and that both defendants struck him in the face and left
him with bruises and abrasions. All of the child's injuries were amply
documented by the photographs submitted in evidence. Under these
circumstances, we discern no basis for disturbing Judge Miller's finding that
defendants abused the seven-year-old child.
We also reject D.R.'s argument that the first judge's in camera interview
with Steven did not comport with all of the requirements of N.J. Div. of Child
Prot. & Permanency v. C.W., 435 N.J. Super. 130 (App. Div. 2014), and
N.J.S.A. 2A:84A-32.4. D.R. consented to the interview, and the court gave her
the opportunity to pose questions for the court to ask. D.R. did not take
advantage of this opportunity, and did not even appear in court for the interview.
However, she now argues that the judge should have made specific findings
concerning the need for the interview, ensured that her attorney was present for
it, and permitted her to cross-examine the child. Because this did not occur,
D.R. argues that her due process rights were violated. Again, we disagree.
When an interview with a child is conducted in a Title Nine proceeding
and a defendant claims the interview violated due process, the court "must
consider whether [the defendant] was given a sufficient opportunity to confront
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the Division's evidence in light of the interview procedures followed by the
judge." C.W., 435 N.J. Super. at 145. "The analysis is twofold: was [the
defendant] prejudiced by the procedure utilized, and did the Division's other
evidence satisfy its burden of proof." Ibid.
Under the first prong of C.W. there is no evidence that the manner in
which the interview was conducted prejudiced D.R., who had the full
opportunity to question the child but declined to do so. Steven's statement
during the interview that defendants harmed him also merely duplicated the
similar report he gave to Dr. Lanese. Additionally, pursuant to the second prong
of C.W., there was ample evidence in the record aside from Steven's interview
to support Judge Miller's finding that D.R. (and S.C.) abused the child.
Therefore, D.R. was not deprived of due process.
Affirmed.
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