DCPP v. Y.D., A.D. AND C.T., IN THE MATTER OF K.B. AND G.D. (FN-07-0097-20, ESSEX COUNTY AND STATEWIDE) (CONSOLIDATED) (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NOT FOR PUBLICATION WITHOUT THE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 NOS. A-2823-20
A-2978-20
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
Y.D. and A.D.,
Defendants-Appellants,
and
C.T.,
Defendant.
_________________________
IN THE MATTER OF
K.B. and G.D., minors.
_________________________
Submitted May 3, 2022 – Decided June 16, 2022
Before Judges DeAlmeida and Berdote Byrne.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FN-07-0097-20.
Joseph E. Krakora, Public Defender, attorney for
appellant Y.D. (Carol L. Widemon, Designated
Counsel, on the briefs).
Joseph E. Krakora, Public Defender, attorney for
appellant A.D. (Arthur David Malkin, Designated
Counsel, on the briefs).
Matthew J. Platkin, Acting Attorney General, attorney
for respondent (Sookie Bae-Park, Assistant Attorney
General, of counsel; Jessica A. Prentice, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor K.B. (Todd Wilson, Designated
Counsel, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor G.D. (Meredith Alexis Pollock,
Deputy Public Defender, of counsel; Neha Gogate,
Assistant Deputy Public Defender, of counsel and on
the brief).
PER CURIAM
Defendants Y.D. (Mother) and A.D. (Father) appeal from the February 18,
2021 order of the Family Part finding they abused or neglected their child G.D.
within the meaning of N.J.S.A. 9:6-8.21(c).1 We affirm.
1
We identify the parties by initials to protect confidential information in the
record. R. 1:38-3(d)(12).
A-2823-20
2
I.
G.D. was five years old at the times relevant to this appeal. K.B., who
was twelve-years old, is G.D.'s sibling.2 The family resides together.
It is undisputed that G.D. suffered second- and third-degree burns
covering one-fourth of her body from a hot iron while at home with Mother.
Father claims not to have been home when the child was injured. The burns
were discovered by school personnel four days after the child was injured. They
reported the injuries to plaintiff Division of Child Protection and Permanency
(DCPP or Division).
The cause of the burns – whether they were intentionally inflicted by
Father or the result of G.D. becoming entangled in the hot iron's electrical cord
while sleeping on the floor – was in dispute. In either scenario, the parties agree
that Mother was asleep when the child was burned. In addition, defendants deny
that their admitted failure to seek medical care for G.D.'s injuries harmed her or
placed her at substantial risk of harm.
After a three-day trial, the court issued an oral opinion finding that Father
intentionally burned G.D. with the hot iron at least twice. In addition, the court
2
Y.D. is K.B.'s mother. Her father is defendant C.T. who is not participating
in this appeal.
A-2823-20
3
concluded defendants' failure to seek medical care for the child exposed her to
the substantial risk of infection and a hampered recovery.
The court made the following findings of fact. G.D. was absent from
kindergarten on September 12 and 13, 2019, a Thursday and Friday. Mother
told school officials G.D. was suffering from a viral infection. When G.D.
returned to school on Monday, a teacher noticed she had a bandage on her neck
and was wearing two shirts, one of which was stained with blood. When she
asked G.D. why she was wearing a bandage, the child stated, "my daddy burned
me with an iron."
The teacher brought the child to the school nurse, who observed the
bandage to be dirty. When she lifted the bandage, the nurse saw burns on G.D.'s
chest that appeared "blistered, red, and bloody." She removed the bandage,
cleaned the wounds, and applied burn spray and a new bandage. The nurse
determined G.D. needed further medical treatment. When the nurse asked G.D.
how she was injured, she said, "my daddy burned me with an iron."
A Division investigator met privately with G.D. at the school. The child
told the investigator that she "fell on the floor while playing and fell on the iron."
However, when asked how she was burned, G.D. said, "Daddy put a wrap on
me." When asked to clarify her statement, G.D. said, "Daddy put an iron on
A-2823-20
4
me." G.D. said that her "mother was asleep, and she put cold water on her body."
G.D. told the investigator that her "leg was burned too," that K.B. "burned my
leg," and that "everyone burns my legs." G.D. disclosed that when she is in
trouble, she "get beatings," that "the iron beats" her, and that K.B. was there and
crying when the iron beats her.
The investigator also met with K.B., who admitted she was asleep at the
time of the incident. She stated that Father was not home when G.D. was burned
and arrived shortly afterward. A DCPP record notes that K.B. previously said
that her Father woke her up after the incident to ask for assistance treating G.D.'s
wounds, suggesting he was home when G.D. was burned. After being told by
Mother that Father was not home when G.D. was burned, K.B. stated that it must
have been Mother who woke her up. K.B. reported that she believes her sister
knocked over the iron and was not deliberately burned. K.B. reported that
Mother did not take G.B. to the hospital to treat her burns for financial reasons.
She also stated that Father bought medical supplies at a pharmacy to treat G.D.,
presumably after he returned home.
The investigator contacted Father to inform him of the referral. When
asked if G.D. had received medical treatment for her burns, he reported that she
A-2823-20
5
had been taken to Newark Beth Israel Medical Center (Beth Israel). Subsequent
inquires revealed no record of G.D. having been treated at the hospital.
The investigator also interviewed Mother. She said that she and G.D. were
asleep in the same bed in the early morning hours of September 12, when Mother
was awakened by a scream. She said she saw G.D. standing near the bed with
the iron cord wrapped around her arm. Mother stated that the iron had been
sitting on a nightstand and that she had left it turned on after using it earlier in
the day. Mother stated that the iron was new and did not have the automatic
shut off feature of her old iron. She speculated that G.D. had been sleeping on
the floor, which she did when it was hot, got tangled in the iron's cord and
accidentally pulled it down on her, causing the burns. Mother said Father was
not home when G.D. was burned because he was taking care of his sick father.
Mother also said she did not take G.D. to the hospital because she "had
antiseptic at home." She instead treated G.D.'s burns with Neosporin and gave
her Tylenol. Mother claimed that G.D. did not complain of pain in the days after
she was burned. After the interview, the investigator overheard Mother on the
telephone ask Father, "why did you lie to the Division? Don't you know they
can find out whether she was taken to the hospital? You don't do that."
A-2823-20
6
At the investigator's urging, G.D. was taken to a burn center. Medical
personnel determined G.D. suffered second- and third-degree burns on her chest,
as well as burns on her neck, left side, and upper arms. A second-degree burn
involves the epidermis, with the layer underneath being red, painful, and
blistered. A third-degree burn involves the epidermis and lower layers of skin,
including nerves, which results in an absence of pain. G.D.'s burns were not
infected when she arrived at the hospital. 3
G.D. was admitted to the step-down unit of the burn center. During her
fifteen-day stay, G.D. received daily hydrotherapy, occlusive dressing changes,
and split skin graft surgery with donor skin excised from her left buttock. G.D.
would "loudly scream[] until [hydrotherapy] was completed," "scream[], push[]
and kick[]" when scissors, water or removal tools were brought near her , and
quietly cry while walking into the treatment room. Following surgery, G.D. had
limited functional mobility and required physical and occupational therapy .
In a subsequent interview, Father repeated that he was not home when
G.D. was burned. He said that he arrived at home at approximately 3:00 a.m.
3
At trial, an expert explained that the classification of burns has changed to
"superficial" for first-degree burns, "superficial partial thickness" for second-
degree burns, "deep partial thickness" for third-degree burns. The classification
for fourth-degree burns remains the same.
A-2823-20
7
and Mother told him G.D. had burned herself with the iron. He claimed to have
"put a rag around the child's chest to soothe the pain from the burn." When told
that G.D. had stated that he burned her with the iron, Father said the child
probably meant to say that he treated her after she was burned accidentally.
During an interview with an agent from the prosecutor's office, G.D., who
appears to have developmental delays, provided various accounts of how she
sustained her injuries, but also repeatedly stated that "daddy" burned her. She
said that Mother told Father "you can't burn her," and that Father responded , "I
can and I can do it myself." G.D. recalled "screaming" and that "Mommy [was]
crying for my body." Both Mother and Father were charged criminally in
connection with G.D.'s burns and lack of medical care.
DCPP substantiated the allegations that Father physically abused G.D. and
that both Mother and Father abused or neglected G.D. by not seeking medical
care for her burns. The Division filed complaints in the Family Part seeking the
care and supervision of G.D. and K.B., alleging defendants abused or neglected
the children within the meaning of N.J.S.A. 9:6-8.21(c).
In addition to several fact witnesses, including G.D.'s teacher, the school
nurse, and the prosecutor's office agent, the trial court heard testimony from
three experts. In its oral opinion, the court found credible the opinion of Dr.
A-2823-20
8
Weiner, a physician at Beth Israel, a regional diagnostic and treatment center
for abused and neglected children, who the court qualified as an expert in child
abuse pediatrics. The court found the expert "clearly and thoroughly articulated
the basis of her conclusions."
The court accepted Dr. Weiner's opinion that "it was extremely unlikely
that an iron accidentally fell on [G.D.] and caused these burns." Based on
photographs of the injuries, the doctor opined that "the iron touched [G.D.] at
least twice in two different orientations," causing "very well-defined marks" and
lacking "motion artifact," which would leave "less defined . . . streaky or
blotchy" markings "expect[ed] if [the iron] fell on her and she was struggling to
get it off." The court found credible the expert's opinion that G.D. was
"deliberately burned" with the iron "multiple times," noting that the photographs
of the injuries show "clearly defined" steam holes from the bottom of the iron
burned into G.D.'s skin, as well as delineations of the length of the iron and
triangular shapes from its surface.
The court rejected the opinion offered by Father's expert in child abuse
pediatrics that the burns were likely accidental. The court concluded that the
expert was "unable to opine with a reasonable degree of medical certainty that
the burns [G.D.] received were accidental."
A-2823-20
9
While noting G.D. gave multiple versions of how she was burned, as well
as some nonsensical answers to questions, the court concluded the expert's
opinion, as well as the physical evidence, corroborated G.D.'s report that Father
burned her with the iron multiple times. In addition, the court found Mother's
false report to the school that G.D. was suffering from a viral infection and
defendants' failure to seek medical treatment support the finding that the burns
were deliberate. Thus, the court concluded, the Division had established by a
preponderance of the evidence that Father deliberately burned G.D.
With respect to whether the delay in medical treatment subjected G.D. to
harm or the risk of substantial harm, the court also accepted Dr. Weiner's opinion
that G.D. would have been "screaming in pain" when she was burned and the
second-degree burns would have "continued to cause [G.D.] pain" after the
initial injury. The court also accepted the expert's opinion that a "reasonable
parent seeing their child burned, seriously burned by an iron should seek medical
care immediately" and that the delay in medical treatment put G.D. at risk of
infection and "having the whole wound, the whole burn area not heal properly."
The court found these potential medical consequences to be substantial risks of
harm. In addition, the expert clinically diagnosed G.D. with "medical neglect,"
an opinion adopted by the trial court.
A-2823-20
10
The court rejected as "speculative" and "without support in the records"
the opinion of Mother's expert physician in emergency room treatment that
Mother's treatment of G.D.'s burns did not increase the child's risk of medical
complications. The court noted that the expert offered that opinion despite his
observation that "left untreated the third-degree burns would remain as open
wounds" and that only a medical professional could determine whether a skin
graft was necessary to treat a third-degree burn.
The court found that the medical treatment G.D. received during her two-
week stay in the step-down burn unit was "drastically different" from the
minimum care defendants provided, corroborating the conclusion that they
failed to exercise a reasonable degree of care by not seeking medical treatment.
The court acknowledged the absence of evidence that G.D.'s burns were
infected. In addition, the court recognized the delay in treatment did not cause
actual harm because G.D. was brought to the burn center at the Division's urging
soon enough to obtain the treatment she would have obtained had she been
promptly brought to the hospital by defendants.
In a February 18, 2021 order, the court found that Father abused or
neglected G.D. by physically assaulting her and that Mother and Father abused
A-2823-20
11
or neglected G.D. when they "failed to exercise a minimum degree of care in
ensuring that [G.D.] received the medical attention in a timely fashion." 4
These appeals followed. Father argues the trial court's finding that he
deliberately burned G.D. is not supported by sufficient evidence. He argues that
G.D. is an unreliable witness who offered confusing and conflicting accounts of
how she was burned. He notes that during interviews G.D. did not know the
difference between truth and lies and answered questions she did not understand.
He contrasts her statements with his consistent denials of harming the child and
Mother's consistent statements that he was not home when G.D. was burned and
her admission that she left the iron on. He also notes the record contains no
evidence as to why he would harm G.D. or that he took part in the decision not
to take the child to the hospital, which, he contends, was made by Mother.
Mother argues the trial court erred because it relied on an ordinary
negligence standard to conclude she abused or neglected G.D., measured her
4
When G.D. was in the hospital, the Division effectuated an emergency removal
of K.B. from defendants' custody pursuant to the Dodd Act, N.J.S.A. 9:6-8.21
to -8.82. See N.J. Div. of Youth & Fam. Servs. v. J.D., 417 N.J. Super. 1, 4 n.1
(App. Div. 2010). The Division later sought custody of G.D. Although the
Division's applications were granted, the trial court ultimately returned custody
of G.D. and K.B. to Mother and the protective services litigation was terminated
on April 29, 2021. Father is restricted from residing in the family home because
the criminal charges against him are unresolved. The briefs submitted to us
address only the trial court's finding of abuse or neglect of G.D.
A-2823-20
12
actions against a medical standard of care, and did not identify the subsection of
N.J.S.A. 9:6-8.21(c) on which it relied for its conclusion. Mother argues that
inclusion of the correct statutory standard in the court's order does not cure the
deficiency in its oral opinion. Finally, Mother argues that the court ceded its
decision-making authority to Dr. Weiner by adopting her opinion without
referencing the relevant statutory standards.
G.D.'s law guardian filed a brief supporting the trial court's order. K.B.'s
law guardian filed a brief supporting defendants' arguments.
II.
We defer to Family Part judges' fact-finding because of their "special
jurisdiction and expertise in family matters," Cesare v. Cesare, 154 N.J. 394,
413 (1998), their "opportunity to make first-hand credibility judgments about
the witnesses who appear on the stand[,] [and their] feel of the case that can
never be realized by a review of the cold record." N.J. Div. of Youth & Fam.
Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (quoting N.J. Div. of Youth &
Fam. Servs. v. E.P., 196 N.J. 88, 104 (2006)). Fact-finding that is supported by
"substantial credible evidence in the record" is upheld. N.J. Div. of Youth &
Fam. Servs. v. L.L., 201 N.J. 210, 226 (2010). However, we will not hesitate to
set aside a ruling that is "so wide of the mark that a mistake must have been
A-2823-20
13
made." N.J. Div. of Youth & Fam. 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)). We review de novo the court's interpretation of the law.
D.W. v. R.W., 212 N.J. 232, 245-46 (2012).
The "main focus" of Title Nine, of which N.J.S.A. 9:6-8.21(c) is a part, is
"the protection of children." Div. of Child Prot. & Permanency v. E.D.-O., 223
N.J. 166, 178 (2015) (quoting G.S. v. Dep't of Hum. Servs., 157 N.J. 161, 177
(1999)). According to the relevant provisions of the statute, an "[a]bused or
neglected child" is a person
less than [eighteen] years old whose parent or guardian
. . . (1) inflicts or allows to be inflicted upon such child
physical injury by other than accidental means which
causes or creates a substantial risk of . . . serious or
protracted disfigurement, or protracted impairment of
physical or emotional health . . . (2) creates or allows
to be created a substantial or ongoing risk of physical
injury to such child by other than accidental means
which would be likely to cause death or serious or
protracted disfigurement . . . (4) or 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 [a] parent . . . to
exercise a minimum degree of care (a) in supplying the
child with adequate . . . medical or surgical care though
financially able to do so or though offered financial or
other reasonable means to do so, or (b) in providing the
child with proper supervision or guardianship, by
unreasonably inflicting or allowing to be inflicted
harm, or substantial risk thereof, including the
A-2823-20
14
infliction of excessive corporal punishment; or by any
other acts of a similarly serious nature requiring the aid
of the court . . . .
[N.J.S.A. 9:6-8.21(c)(1), (2) and (4).]
Proof of harm under the statute can come from any number of competent
sources, including "medical and hospital records, health care providers,
caregivers, or qualified experts." N.J. Div. of Youth & Fam. Servs. v. A.L., 213
N.J. 1, 23 (2013). The trial court has the authority to weigh and evaluate expert's
testimony. N.J. Div. of Youth & Fam. Servs. v. J.S., 433 N.J. Super. 69, 93
(App. Div. 2013). It is within the court's discretion to accept parts of a witness's
testimony, while rejecting others. E&H Steel v. PSEG Fossil, LLC, 455 N.J.
Super. 12, 29 (App. Div. 2018); Brown v. Brown, 348 N.J. Super. 466, 478 (App.
Div. 2002).
"The weight to be given to the evidence of experts is within the
competence of the fact-finder." LaBracio Fam. P'ship v. 1239 Roosevelt Ave.,
Inc., 340 N.J. Super. 155, 165 (App. Div. 2001). A reviewing court should
"defer to the trial court's assessment of expert evaluations." N.J. Div. of Youth
& Fam. Servs. v. H.R., 431 N.J. Super. 212, 221 (App. Div. 2013).
A child's hearsay statements are admissible to prove abuse or neglect
when corroborated by other evidence. N.J.S.A. 9:6-8.46; N.J. Div. of Youth &
A-2823-20
15
Fam. Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002). "[T]he most
effective types of corroborative evidence may be eyewitness testimony, a
confession, an admission, or medical or scientific evidence." N.J. Div. of Youth
& Fam. Servs. v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003).
We address first the trial court's conclusion that Father abused or
neglected G.D. by deliberately inflicting a physical injury on her and causing a
substantial risk of serious or protracted disfigurement or protracted impairment
of her physical or emotional health within the meaning of N.J.S.A. 9:6-
8.21(c)(1). We are not persuaded by Father's argument that the trial court's
decision lacks sufficient evidentiary support in the record.
The court acknowledged that G.D. provided multiple accounts of how she
was burned, some of which excluded Father. The court, however, did not rely
only on G.D.'s hearsay statements to conclude Father deliberately burned her.
Instead, the court found that the expert testimony of Dr. Weiner, who it
determined to be credible, the photographs of G.D.'s burns, and defendants'
dissembling with school personnel and failure to seek medical care,
corroborated G.D.'s account of deliberate harm by Father. We have carefully
reviewed the record, including the photographs of G.D.'s injuries, and are
satisfied that there is sufficient support for the trial court's conclusion that it is
A-2823-20
16
more likely than not that Father deliberately burned G.D. Furthermore, Father
points to no precedent, and we are aware of none, requiring the Division prove
a parent's motive for physically harming a child in order to establish abuse or
neglect under N.J.S.A. 9:6-8.21(c). While the record does not contain evidence
suggesting why Father would intentionally harm G.D., such evidence is not
essential to a finding of abuse and neglect.
Nor do we find merit in defendants' arguments challenging the trial court's
finding of abuse or neglect based on their failure to seek medical care for G.D.
Under Section (c)(4), "a minimum degree of care" is "conduct that is grossly or
wantonly negligent, but not necessarily intentional." G.S., 157 N.J. at 178.
More is required than ordinary negligence, but less is needed than an intentional
infliction of injury. Ibid. "[A] guardian fails to exercise a minimum degree of
care when he or she is aware of the dangers inherent in a situation and fails
adequately to supervise the child or recklessly creates a risk of serious injury to
that child." Id. at 181. "Where an ordinary reasonable person would understand
that a situation poses dangerous risks and acts without regard for the potentially
serious consequences, the law holds him responsible for the injuries he causes."
Id. at 179.
A-2823-20
17
When considering Mother's argument that the trial court's oral decision
was insufficiently precise in identifying the statutory basis on which the court
relied, we begin with the well-settled principle that "appeals are taken from
orders and judgments and not from opinions, oral decisions, informal written
decisions, or reasons given for the ultimate conclusion." Hayes v. Delamotte,
231 N.J. 373, 387 (2018) (quoting Do-Wop Corp. v. City of Rahway, 168 N.J.
191, 199 (2001)). The February 18, 2021 order expressly states that defendants
"failed to exercise a minimum degree of care in ensuring [G.D.] received . . .
medical attention in a timely fashion." It is plain the court relied on N.J.S.A.
9:6-8.21(c)(4) when it determined defendants abused or neglected G.D. by
failing to seek medical care. In addition, the court's oral opinion included a
recitation of N.J.S.A. 9:6-8.21(c)(4), including the "minimum degree of care"
standard, further evidencing the basis for the court's decision.
Our review of the record revealed ample support for the trial court's
determination that G.D.'s physical, mental or emotional condition was impaired,
in imminent danger of being impaired, or at substantial risk of harm because of
defendants' failure to seek medical treatment for her serious burns. There can
be little doubt that G.D.'s injuries, which required a fifteen-day hospital stay that
included a surgical skin graft, needed medical attention beyond the application
A-2823-20
18
of an antiseptic cream and a bandage. It is hard to imagine how any parent or
guardian exercising even the most minimal level of care could allow a five-year-
old child with third-degree burns to go unseen by a medical professional for four
days. The fact that Father lied about having brought the child to a hospital,
along with Mother's lie to school officials that G.D. had a viral infection to
explain her absence from kindergarten, supports the trial court's conclusion that
defendants knew G.D. had serious injuries but failed to secure medical
treatment, likely to cover up deliberate abuse.
Fortunately for G.D., defendants' delay in seeking medical treatment did
not worsen the outcome of her hospital stay and surgery. Actual harm to a child,
however, is not necessary for a finding of abuse or neglect. A.L., 213 N.J. at
23. We have carefully considered defendants' remaining arguments and
conclude they lack sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(1)(E).
Affirmed.
A-2823-20
19