DCPP VS. A.H., A.T., E.R. AND G.M. IN THE MATTER OF J.R., G.T. AND Y.T(FN-20-0131-13, UNION COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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 NO. A-1224-15T3
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
A.H.,
Defendant-Appellant,
and
A.T., E.R., and G.M.,
Defendants.
________________________________
IN THE MATTER OF J.R., G.T.,
and Y.T., MINORS.
______________________________________________
Argued September 11, 2017 – Decided October 19, 2017
Before Judges Accurso and O'Connor
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Union
County, Docket No. FN-20-0131-13.
Beatrix W. Shear, Designated Counsel, argued
the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Ms. Shear, on the
briefs).
Elizabeth Erb Cashin, Deputy Attorney
General, argued the cause for respondent
(Christopher S. Porrino, Attorney General,
attorney; Andrea M. Silkowitz, Assistant
Attorney General, of counsel; Ms. Cashin, on
the brief).
Karen Ann Lodeserto, Designated Counsel,
argued the cause for minors (Joseph E.
Krakora, Public Defender, Law Guardian,
attorney; Ms. Lodeserto, on the brief).
PER CURIAM
Following a fact-finding hearing in this Title Nine matter,
the Family Part court found defendant A.H. abused Y.T. (baby).1
A.H. appeals from the March 25, 2014 order memorializing that
decision. We remand for further proceedings.
I
The pertinent individuals in this matter are (1) the baby;
(2) her mother, defendant A.T. (mother); (3) her brother, J.R.
(brother); (4) her sister, G.T. (sister); and (5) defendant
A.H., the mother's boyfriend. Although the mother is also a
defendant, she did not appeal the court's finding she, in
addition to A.H., harmed the baby in violation of N.J.S.A. 9:6-
1
We employ the use of initials to protect the privacy of the
parties and their family members.
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8.21(c). Thus, for simplicity we refer to A.H. as "defendant"
for the balance of this opinion.2
The material evidence adduced at the fact-finding hearing
was as follows. At the time of the subject incident in March
2013, the baby was eight months old, and her brother was four
and her sister six years of age. The three children lived with
their mother, who was in a dating relationship with defendant
from November 2012 to May 2013. Defendant had his own home and
did not live with the mother and children, but he spent a fair
amount of time in her home, spending the night three to four
times per week. When he stayed overnight, defendant slept in
the same room as the mother and baby.
In January 2013, the mother noticed the baby was losing her
hair. A doctor diagnosed alopecia (hair loss) and prescribed a
topical steroid, but the baby continued to lose her hair over
the next two months. On March 28, 2013, the mother noticed the
baby's scalp was swollen, and by April 1, 2013, the baby's
condition worsened. Her scalp, forehead, and eyelids were
swollen and her eyelids appeared bruised. The baby was taken to
the emergency room and admitted to the hospital that day.
2
The two remaining defendants are E.R., the baby's and the
brother's father, and G.M., the sister's father. Neither was
implicated in the allegations litigated during the fact-finding
hearing, and both were eventually dismissed from this matter.
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After conducting a number of tests, pediatrician Monica
Weiner, M.D., diagnosed the baby's condition as "traction
alopecia," meaning the baby's hair had been forcefully pulled
out of her head. In a report admitted during the fact-finding
hearing, Dr. Weiner stated the force was violent enough to lift
the muscles of the scalp off of the baby's skull, causing
bleeding beneath those muscles. The blood then trickled down to
the baby's face and around her eyes. While in the hospital, the
swelling receded and the discoloration around her eyes
diminished. Dr. Weiner opined the baby's hair had been
chronically pulled for at least two to three months, commencing
around the time the mother first noted the baby's hair loss in
January 2013.
During the baby's admission, the hospital contacted the
Division of Child Protection and Permanency (Division) to report
suspected child abuse. The Division executed an emergency Dodd
removal3 of all three children pursuant to N.J.S.A. 9:6-8.29(a).
Following the filing of a verified complaint and order to show
cause, on April 9, 2013 the court upheld the Dodd removal and
ordered the children remain under the Division's care, custody,
3
A Dodd removal refers to the emergency removal of a child
from his or her home without a court order pursuant to the Dodd
Act. See N.J.S.A. 9:6-8.29(a).
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and supervision. Two of the children were not returned to the
mother's physical custody until December 2014, and the third was
not returned until February 2015. Within a month of being
removed from her home in April 2013, the baby's hair had grown
back.
During the Division's investigation, both the mother and
defendant advised its employees they had not and did not know
who had pulled out the baby's hair. The mother reported, except
for three hours each weekday when she attended school, she was
the baby's sole caretaker. While she was at school, the baby's
aunt cared for the child. The aunt had last cared for the baby
on March 28, 2013. The mother also informed the Division she
never left the children alone with the baby's brother, sister,
or defendant.
Division worker Darryl Louis testified the brother told him
he saw defendant pulling out the baby's hair, and that the
mother told defendant to stop and hit him with a basketball or
hanger. The sister, however, told Louis she had never seen
anyone pull the baby's hair out.
Another Division worker, Indira Delossantos, testified she
was supervising the mother's visit with the children in a
McDonald’s in September 2013 when the mother stated the baby's
hair was "bountiful." The brother then remarked, "remember how
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[defendant] used to pull [the baby's] hair and blood would come
out from her head." The mother replied, "no, no, . . . that
never happened. [The baby] used to bleed from her nose, but she
never bled from her head." The brother, replied, "Yes, mommy,
remember that [defendant] would pull [the baby's] hair and she
would bleed from her head?" The worker conceded that, at times,
the brother does not tell the truth.
While driving the sister back from visitation to her
resource home, the worker asked her if what the brother had
stated when in McDonald's were true. The sister replied the
defendant used to pull the baby's hair "hard" and made the baby
cry. She further stated the mother told defendant to stop, but
he would "do it again and again."
There was evidence the sister has behavioral problems and,
at times, was very violent. For example, on one occasion the
sister picked up the baby while the baby was in her car seat and
threw the seat to the ground. The sister also pulled out her
own hair at times.
The mother did not but defendant did testify. He claimed
he did not do anything to cause the baby's hair to fall out. He
further stated he was never left alone with the baby, that the
mother was always present when he and the baby were together.
Of significance to the court's ultimate findings, defendant
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mentioned he never woke during the night when he spent the night
in the mother's home. Finally, he noted his relationship with
the mother ended in the summer of 2013.
The court determined defendant was the person who had been
pulling out the baby's hair between January and March 2013. The
court found defendant was not credible when he asserted he never
woke up when he slept in the mother's room with the baby. The
court concluded defendant did in fact wake up "a few times or
regularly and that he wanted to conceal that from the [c]ourt."
Further, if we understand its reasoning correctly, the court
surmised that, on occasion, defendant woke up during the night
between January and March 2013 and, while the mother was
sleeping and thus not supervising the baby, pulled out hair from
the baby's head.
The court did add the siblings' statements corroborated
defendant's "utterly incredible testimony," but the court's
reason for finding defendant was the culprit was founded on the
fact he was not credible when he claimed he always slept through
the night, not the content of the siblings' statements. We note
here the siblings' statements do not corroborate the premise
defendant pulled out the baby's hair while the mother slept,
because the siblings would not have been present to witness such
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actions. The evidence was only the mother, defendant, and the
baby were together in the same room overnight.
The court also found the mother had abused the baby because
the mother knew or should have known of the "two to three months
progression and/or continuation of forceful hair pulling" and,
thus, placed the baby in a position of and failed to protect her
from being harmed.
The court rejected the premise the aunt was the perpetrator
on the ground she had last cared for the baby on March 28, 2013.
However, the court did not explain how such fact exonerated the
aunt; after all, the most serious symptoms of hair pulling began
to manifest themselves on this date, progressing in severity
until the mother took the child to the emergency room on April
1, 2013.
II
The standards governing our limited review are well
defined. Findings of fact by a trial court are considered
binding on appeal if supported by adequate, substantial and
credible evidence. Rova Farms Resort, Inc. v. Investors Ins.
Co. of Am., 65 N.J. 474, 484 (1974). However, if the issue to
be decided is an "alleged error in the trial judge's evaluation
of the underlying facts and the implications to be drawn
therefrom," we expand the scope of our review. In re
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Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div.
1993) (quoting Snyder Realty, Inc. v. BMW of N. Amer., Inc., 233
N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165(1989)). A trial court's legal conclusions and the application
of those conclusions to the facts are also subject to plenary
review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995).
Of course, our review of a trial court's findings of fact
and the conclusions it draws from those findings presupposes the
court made such findings sufficiently clear to enable us to
engage in a meaningful review. That requires a trial court
clearly articulate how the facts support its legal conclusions
and substantiate the relief awarded to the prevailing party.
"[T]he trial court must state clearly its factual findings and
correlate them with the relevant legal conclusions." Curtis v.
Finneran, 83 N.J. 563, 570 (1980); see also R. 1:7-4(a)
(requiring court to find the facts and state its conclusions of
law in all actions tried without a jury).
Here, the trial court was free to find defendant was not
credible when he testified he never woke up when slept overnight
in the mother's home, and we must accept and defer to that
finding. See Dolson v. Anastasia, 55 N.J. 2, 7 (1969) (noting
appellate court must defer to findings grounded on a witness's
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demeanor or other criteria not transmitted by the written
record). But the conclusions a trial court draws from such
factual findings are not immune from appellate scrutiny.
Here, the court determined because defendant was not candid
about waking up during the night then, when he did wake up, he
must have gone over to the baby's crib and pulled out her hair
while she and the mother were sleeping. What is missing in the
court's analysis is the connection between defendant's false
statement and the conclusion defendant pulled out the baby's
hair. The court's leap from finding defendant was not candid
about waking up in the night and concluding he must have been
the one to have pulled the baby's hair is not supported by any
reasoning connecting the falsehood to the infliction of harm.
In addition, there were others who had access to the baby during
this period, specifically the mother, the aunt, and the two
siblings. The court did not address how it eliminated them as
responsible for the baby's injuries.
Because the trial judge's opinion omits critical findings
to support the conclusions reached, it falls short of the
requirements of Rule 1:7-4(a). This gap impedes appellate
review, requiring a remand to provide the trial court the
opportunity to clarify its findings. Accordingly, we remand
this matter to the trial court for sixty days to afford the
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court to make these findings. Defendant A.H. shall have fifteen
days from the day he receives the court's decision to file a
brief, which shall not exceed ten pages in length. The Division
and the Law Guardian shall have fifteen days from the day they
receive defendant's brief to file their response brief, which
also shall not exceed ten pages in length.
Remanded for further proceedings consistent with this
opinion. We retain jurisdiction.
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