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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3805-24
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
E.Z.-V.,
Defendant,
and
J.A.,
Defendant-Appellant. ________________________
IN THE MATTER OF J.A. and J.Z.-V., minors.1 ________________________
Submitted May 11, 2026 – Decided July 2, 2026
Before Judges Walcott-Henderson and Bergman.
1 We use initials to protect the identity and privacy of the children. R. 1:38- 3(d)(10) to (12). On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-0115-24.
Jennifer N. Sellitti, Public Defender, attorney for appellant (Eric Storjohann, Assistant Deputy Public Defender, on the briefs).
Jennifer Davenport, Attorney General, attorney for respondent, (Deborah E. Wassel, Assistant Attorney General, of counsel; Alicia Y. Bergman, Deputy Attorney General, on the brief).
Jennifer N. Sellitti, Public Defender, Law Guardian, attorney for minors (Meredith Alexis Pollack, Deputy Public Defender, of counsel; Noel C. Devlin, Assistant Deputy Public Defender, of counsel and on the brief).
Defendant J.A. appeals from two orders issued by the Family Part: a June
18, 2025 order terminating litigation, and a September 20, 2024 order entered
following a Title Nine fact-finding hearing that resulted in a determination he
abused or neglected his then-six-month-old son, J.Z.-V. The finding was based
on evidence that J.Z.-V. sustained a fracture while under J.A.'s care, which the
Division of Child Protection and Permanency's (the Division) medical expert
opined was consistent with an injury inflicted on a non-ambulatory infant.
Before us, J.A. argues solely that he was denied the effective assistance of
counsel at the fact-finding hearing because trial counsel failed to adequately
A-3805-24 2 prepare and present the testimony of his medical expert to rebut the State's
theory of medical causation.2 Having carefully reviewed the record, we affirm.
I.
We briefly recount the facts adduced at the fact-finding hearing to provide
context for our analysis, with particular emphasis on the testimony of J.A.'s
medical expert, Dr. Jack Levenbrown, which underlies J.A.'s ineffective
assistance of counsel claim.
At the time of the events giving rise to this litigation, J.Z.-V. was
approximately six-months-old and not yet ambulatory. J.Z.-V. resided with his
mother, E.Z.-V., father, J.A., and older half-brother, John, although at least one
subsequent report stated that J.Z.-V.'s paternal uncle may have also resided in
the home.3
On July 11, 2023, E.Z.-V. took J.Z.-V. to University Hospital after
observing that he appeared to be experiencing pain in his leg. She reported that
J.Z.-V. had been experiencing pain for several days when she touched his left
2 Before us, J.A. does not challenge the court's fact-finding of abuse or neglect. 3 Given that the siblings share the same initials, we adopt the name "John" as a pseudonym to protect the confidentiality of the victim. See R. 1:38-3(d)(10) to (12). A-3805-24 3 leg, was unaware of any fall or other cause of the injury, and delayed seeking
medical attention because she "did not have any days off." 4
After evaluating J.Z.-V., hospital staff obtained imaging of his left leg.
The X-ray revealed what was described as "a concerning metaphyseal chip
fracture at the distal end of the tibia." Hospital records further noted that,
"[g]iven [the] concerning pattern of fracture in a non[-]ambulatory child . . .
concern for non[-]accidental trauma is high." Medical imaging revealed no
fractures other than the left tibial injury. The July 12 skeletal survey "did not
reveal any other fractures," and a repeat skeletal survey performed on August 1,
2023 showed "no old or new fractures." Orthopedic specialists were consulted,
a cast was applied, a skeletal survey was ordered, and the Division was notified .
The Division commenced an investigation into the circumstances
surrounding J.Z.-V.'s injuries on July 12, 2023, during which E.Z.-V. gave
several, and often conflicting, accounts regarding the timing and means of the
injury itself.5 E.Z.-V. initially reported that, after picking J.Z.-V. up from the
4 The record before us contains various contradictory statements from the infant's parents throughout the Division's investigation and the ensuing litigation concerning both the timing and the cause of the infant's injury. 5 The Division had prior contact with the family in 2023 based on allegations concerning the older child and allegations of domestic violence in the home, but a later investigation determined the allegations against J.A. to be unfounded. A-3805-24 4 babysitter on July 11, she changed his diaper, noticed he appeared sensitive
when she touched his ankle, and took him to University Hospital. She further
stated that J.Z.-V. stayed with the babysitter seven days a week, from
approximately 10:00 a.m. to 5:00 p.m., while she worked, and may have been
injured at the babysitter's home. She also reported to Division investigators that
J.Z.-V. may have been injured while she was carrying him up the stairs along
with a stroller and bags. Later that day, during questioning at the Special
Victims Unit, E.Z.-V. reportedly said J.Z.-V. "fell Saturday (July 8th) and
landed hard on the floor, which could have caused the fracture ." She also
changed her account of who retrieved J.Z.-V. from the babysitter, ultimately
stating that J.A. picked him up because she was delayed at work.
Investigators also interviewed John, who initially reported that J.Z.-V.
was in good condition before E.Z.-V. took him to the hospital and stated that he
knew "there was nothing wrong with [J.Z.-V.] because the day of the incident,
[J.Z.-V.'s] foot was straight, and [J.Z.-V.] was not fussing." He also reported
that E.Z.-V. called him that evening and that after seeing J.Z.-V. following the
pickup from the babysitter, he later observed that J.Z.-V.'s foot was "not
straight." As characterized by the Metropolitan Regional Diagnostic and
A-3805-24 5 Treatment Center (Metro RDTC) report, E.Z.-V. "made conflicting statements
regarding who lived in the home with [J.Z.-V.]."
The babysitter provided a different account, in which she told
investigators that J.Z.-V. was fine when he arrived on July 11, had no issues
with his legs or feet, and was picked up by J.A. Later, at the fact-finding hearing,
the babysitter testified J.Z.-V. was dropped off by E.Z.-V. at approximately
11:00 a.m. in "perfect condition," that she changed his diaper "about two or three
times," observed nothing abnormal, and that nothing happened to him while in
her care. She also added that E.Z.-V. reported no issues with the infant when
she dropped him off to suggest he was ill or injured. She further testified J.Z.-
V. was awake, "in good condition," and "wasn't crying" when J.A. picked him
up.
J.A.'s July 12 statement to Division investigators placed J.Z.-V. in his sole
care between pickup from the babysitter and E.Z.-V.'s return home. J.A. stated
that J.Z.-V. was "okay" when he left the babysitter's home, that he walked home
with him in the carrier, and that he later noticed J.Z.-V.'s foot was "not straight"
and appeared swollen.
Following the Division's investigation and filing of a Verified Complaint
for Care and Supervision of J.Z.-V. and John, a three-day fact-finding hearing
A-3805-24 6 ensued. The Division presented the testimony of Dr. Monica Weiner, J.Z.-V.'s
babysitter and a Division permanency worker. J.A. testified and presented the
testimony of Dr. Jack Levenbrown. E.Z.-V. did not testify. 6 The Office of the
Law Guardian appeared on behalf of John and J.Z.-V.
The State's Expert
Dr. Weiner, a child abuse physician, authored the Metro RDTC report and
testified that J.Z.-V. had no documented condition that would predispose him to
fractures and explained that although the injury had been described as both a
metaphyseal corner fracture and a buckle fracture, it nevertheless required
trauma. She opined that in a six-month-old non-mobile infant, "somebody
should know what happened to him to fracture . . . his leg." Based upon the
medical evidence and caregiver history, she concluded the injury occurred
"between the time [J.Z.-V.] was picked up from the babysitter and the time that
his mother got home," and because the fracture remained unexplained, "physical
abuse has to be considered the cause."
6 In his brief, J.A. stated that "[r]egardless of what [E.Z.-V.] testimony would have been, even if she testified that [J.Z.-V.] was hurt three days beforehand, she would be confronted with prior inconsistent statements damaging her credibility. Her testimony would not have affected the outcome of the trial." A-3805-24 7 Dr. Weiner testified consistent with her Metro RDTC report and reached
the same conclusion, stating J.Z.-V.'s leg "was fractured between the time [J.A.]
picked him up and the time [J.Z.-V.] arrived home" and that the injury "should
be considered to be the result of physical abuse."
The Defense's Expert
The defense presented the testimony of Dr. Levenbrown, a board-certified
doctor of pediatrics and radiology, who disagreed with Dr. Weiner's opinion as
to the cause of the infant's injury. During his testimony, Dr. Levenbrown sought
to use a chart he prepared to explain his theory of the different fractures in
pediatric case, and ultimately the cause of J.Z.-V.'s injury. The Division argued
the chart had only been provided the day prior to the expert's testimony, after
they had rested their case, and was not mentioned in Dr. Levenbrown's report.
Defense counsel sought to explain to the court that she had only just
received the subject chart from Dr. Levenbrown on the prior day and that she
had no objection if the Division wanted to recall their expert as a rebuttal witness
and her "intentions were not to enter it into evidence, just simply as an
opportunity to mark it for identification for . . . Dr. Levenbrown to testify or to
assist him in his testimony."
A-3805-24 8 The court declined to permit the use of the chart as demonstrative evidence
but allowed Dr. Levenbrown to testify the injury was an "acute, diagonal, non-
displaced fracture involving the medial aspect of the distal tibial metaphysis,"
rather than a classic metaphyseal lesion. He further opined that "[i]t is highly
likely that the isolated, single minor fracture of the lower left tibia was due to
an accidental injury in this [six-month-old], and was NOT an inflicted injury."
(Emphasis in original). Consistent with that opinion, he testified the fracture
reflected an impact injury, with "a fall being the most likely reason," and was
not the type of injury caused by yanking or twisting. The court also admitted
his report and the attached X-rays into evidence.
The Court's Decision Following the Fact-Finding Hearing
Following the testimonial phase of the hearing and receipt of written post-
trial submissions from the parties, the court issued an oral decision accompanied
by a written order, dated September 20, 2024. The court found by a
preponderance of the evidence that J.A. abused or neglected his son by causing
the infant to sustain a fracture by force under N.J.S.A. 9:6-8.21(c)(1). The court
relied on the babysitter's testimony that the child was not injured when he was
dropped off and considered the time the family arrived at the hospital to
A-3805-24 9 determine that J.A. was the sole caregiver at the time of the injury, which
occurred between these events.
The court credited Dr. Weiner's opinion as "persuasive and supported by
the medical evidence," found the babysitter credible, rejected Dr. Levenbrown's
opinion as "partially based on facts that the [c]ourt does not accept," and
declined to credit E.Z.-V.'s statement that J.Z.-V. had fallen several days earlier.
The litigation remained open until June 18, 2025, when the court entered
the order terminating litigation after finding J.A. had successfully completed
psychotherapy, anger-management and domestic-violence counseling, and
parenting services, and the Division had no concerns regarding the children 's
care and protection.
This appeal followed, limited to J.A.'s claim that he was denied the
effective assistance of counsel at the fact-finding hearing. J.A. also sought to
supplement the record supporting his claims of ineffective assistance of counsel
and included a certification of Dr. Levenbrown. In his certification, Dr.
Levenbrown reiterated his disagreement with the Division's expert's opinion
"the injury the child suffered was a buckle fracture," as the injury he observed
did not conform with what would be seen for a pediatric buckle fracture.
Additionally, he challenged the court's denial of his use of the demonstrative
A-3805-24 10 chart during the hearing and explained that the visual aid was created to show
the "the subject child's X-ray next to examples of either the same type of injury
as [he] diagnosed or the type of injury described by [the Division's] expert,"
essentially arguing the chart was necessary because of the difficult nature of
explaining these concepts to a layperson.
In its amplification filed pursuant to Rule 2:5-1(d), the court emphasized
that J.A.'s admission that E.Z.-V. was not home when he first observed the injury
"further supports the court's finding that the non-accidental injury occurred
while the child was in [J.A.]'s care." The court stated, "[d]uring the Division's
investigation, [J.A.] acknowledged that on the day in question he picked the
child up from the babysitter and took him home. He also admitted that [E.Z.-
V.] was not home at the time that he noticed the injury." The court therefore
concluded that this admission "further supported its finding that the non-
accidental injury occurred while the child was in [J.A.]'s care."
Before us, J.A. raises the following single point for our consideration:
POINT I
Ineffective Assistance of Counsel Impaired Crucial Issues in this Case. (Issue Not Raised Below).
A. Appointed Trial Counsel's Lack of Preparation and Unreasonable Professional [Judgment]
A-3805-24 11 Deprived [J.A.] of Competent Counsel for the Fact-Finding. (Issue Not Raised Below).
B. There is a Reasonable Probability Counsel's Lack of Preparation Altered the Trial Outcome. (Issue Not Raised Below).
II.
"[B]ecause of the family courts' special jurisdiction and expertise in
family matters, appellate courts should accord deference to family court
factfinding." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343
(2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "Moreover,
appellate courts 'defer to the factual findings of the trial court because it has the
opportunity to make first-hand credibility judgments about the witnesses who
appear on the stand; it has a feel of the case that can never be realized by a
review of the cold record.'" Id. at 342-43 (quoting N.J. Div. of Youth & Family
Servs. v. E.P., 196 N.J. 88, 104 (2008)). Thus, "[f]indings by the trial judge are
considered binding on appeal when supported by adequate, substantial and
credible evidence." Pascale v. Pascale, 113 N.J. 20, 33 (1988) (alteration in
original) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484
(1974)).
We address J.A.'s claim because it raises constitutional issues that could
not have been raised below, as "the right to counsel in a termination case has
A-3805-24 12 constitutional as well as statutory bases. . . . [T]he performance of [] counsel
must be effective" N.J. Div. of Youth & Fam. Servs. v. B.R., 192 N.J. 301, 306
(2007). Moreover, the right to counsel is grounded in the constitutional
guarantee that a litigant receive fundamentally fair proceeding and necessarily
includes the right to the effective assistance of counsel. See Strickland v.
Washington, 466 U.S. 668, 685-86 (1984) (explaining that the right to counsel
is the right to the effective assistance of counsel because counsel plays a role
critical to the ability of the adversarial system to produce just results); B.R., 192
N.J. at 306-09.
In B.R., our Supreme Court held that parents facing proceedings that
threaten their fundamental parental rights are entitled to the effective assistance
of counsel and adopted the two-pronged Strickland standard for evaluating such
claims. Ibid.
A defendant who raises an ineffective assistance of counsel claim in a
Title Nine matter, must fulfill both prongs of the test outlined in Strickland:
(1) counsel's performance must be objectively deficient—i.e., it must fall outside the broad range of professionally acceptable performance; and
(2) counsel's deficient performance must prejudice the defense—i.e., there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
A-3805-24 13 [B.R., 192 N.J. at 307 (quoting Strickland, 466 U.S. at 694).]
The first prong requires a litigant to "demonstrate that the attorney's
actions 'were beyond the wide range of professionally competent assistance.'"
N.J. Div. of Youth & Fam. Servs. v. B.H., 391 N.J. Super. 322, 347 (App. Div.
2007) (internal quotation marks omitted) (quoting State v. Savage, 120 N.J. 594,
614 (1990)). Regarding the second prong, a "reasonable probability" that the
results of the matter would have been different means a "probability sufficient
to undermine confidence in the outcome." B.H., 391 N.J. Super. at 348 (quoting
Strickland, 466 U.S. at 694). "[I]n order to establish a prima facie claim, a
petitioner must do more than make bald assertions that he was denied the
effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170
(App. Div. 1999). A petitioner "must allege facts sufficient to demonstrate
counsel's alleged substandard performance." Ibid.
III.
Guided by these well-settled legal principles, we reject J.A.'s ineffective-
assistance-of-counsel claim. J.A. principally argues that trial counsel's alleged
lack of preparation and unreasonable professional judgment deprived him of a
fair fact-finding hearing. More particularly, J.A. argues "[a]ppointed counsel
failed to introduce crucial evidence in a timely manner . . . and should have
A-3805-24 14 known that her last-minute attempt to introduce [a] critical document would
fail," referring to defense counsel's belated attempt to introduce a chart prepared
by Dr. Levenbrown comparing J.Z.-V.'s X-rays to other, unrelated children
during the fact-finding hearing.7 At the time, counsel explained to the court that
she had only just received the chart from Dr. Levenbrown and that she had no
objection if the State wanted to recall its own expert as a rebuttal witness.
Counsel further explained that she sought only to mark the chart for
identification to assist Dr. Levenbrown as he testified, and did not intend to
move the chart into evidence.
The court, however, did not permit the chart to be used. J.A. maintains
his "counsel's excuse for her last-minute attempt to enter this crucial evidence
is unavailing." Based on the court's determination following the fact-finding
hearing, J.A. maintains the court "discounted the testimony of Dr.
Levenbrown[,] stating that he had 'opined that the injury was accidental, with
no credible evidence to support the opinion.'" He posits that there is a
"reasonable probability that, absent counsel's error, the [court] would have the
7 Although Dr. Levenbrown's chart was not admitted into evidence, both parties describe it as a demonstrative exhibit comparing J.Z.-V.'s X-ray with example X-rays depicting various types of pediatric fractures. A-3805-24 15 credible evidence it needed to support Dr. Levenbrown's opinion," as to the
cause of J.Z.-V.'s fracture.
In addressing this point, the Law Guardian emphasizes the lack of clarity
with respect to the contents of Dr. Levenbrown's chart and the timing in which
it was given to defense counsel, noting that "counsel cannot be held responsible
for exhibits that she did not know the expert wanted to use, thus, the presumption
that defense counsel acted reasonably has not been overcome." Similarly, the
State maintains "[J.A.] cannot demonstrate that his counsel should have been
aware of the demonstrative evidence with which she was not provided."
Additionally, the State points to Dr. Levenbrown's own testimony where he
stated that he typically attaches samples X-rays to his report, which were absent
in this case, and emphasizes that "[g]laringly absent from his certification on
appeal is any claim that he provided the demonstrative X-rays to [J.Z.-V.]'s
counsel before trial."
Based on this record, we are not convinced that counsel's failure to timely
serve the demonstrative chart on the Division, or his belated attempt to use it as
a demonstrative aid at the hearing, constituted objectively deficient
representation. "A defendant is entitled to a fair trial, but not a perfect one."
State v. Wakefield, 190 N.J. 397, 537 (2007). Thus, to succeed on his claim,
A-3805-24 16 J.A. must show that both counsel's performance was objectively unreasonable
and the deficiency prejudiced the outcome. See B.R., 192 N.J. at 307. The
Strickland standard is "highly deferential," and requires us to "indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable
professional assistance." Strickland, 466 U.S. at 689.
Here, the record does not support J.A.'s claims. Rather, the record
suggests that Dr. Levenbrown did not include the demonstrative chart with his
report and later provided it in connection with his trial testimony, prompting
defense counsel to explain the late disclosure and represent to the court that s he
would not object to the Division recalling its expert to address the chart's
evidentiary significance. In any case, we are hard-pressed to conclude that
counsel's oral application to the court to admit the chart for identification, which
was denied, is indicative of constitutionally deficient representation as required
under Strickland's first prong. The court permitted Dr. Levenbrown to testify
regarding his qualifications and conclusions and admitted his written report and
J.Z.-V.'s X-rays into evidence. Dr. Levenbrown explained that the injury was
an "acute, diagonal, non-displaced fracture," which was "highly likely"
accidental and "NOT an inflicted injury," and that it was not the type of injury
caused by yanking or twisting. (Emphasis in original). Thus, although it was
A-3805-24 17 ultimately rejected, the defense's theory was fully presented to the court even
without the use of the demonstrative chart. Critically, the court did not reject
Dr. Levenbrown's opinion because the demonstrative exhibits were excluded.
Instead, it found Dr. Weiner's testimony more persuasive as to causation, relied
on the babysitter's testimony regarding J.Z.-V.'s condition at drop-off and pick-
up, and J.A.'s own admissions regarding his interactions with J.Z.-V. to conclude
the injury occurred while J.A. was the infant's sole caregiver.
The court credited the babysitter's testimony that J.Z.-V. arrived in
"perfect condition," exhibited no signs of injury while in her care, and was
awake, "in good condition," and "wasn't crying" when J.A. picked him up. The
court also credited Dr. Weiner's testimony that the fracture required trauma and
occurred during the period between J.Z.-V.'s pickup from the babysitter and
E.Z.-V.'s return home. J.A.'s own statement placed the child exclusively in his
care during that interval and acknowledged he was the first person to notice the
child's foot was "not straight" and swollen. Although the record contains
confusing and at times contradictory accounts, the court resolved those conflicts
by relying on the testimony it found credible and believable after observing the
witnesses and by rejecting factual assumptions it found unsupported. The court
likewise explained why it rejected the competing accidental-injury theory.
A-3805-24 18 Those credibility determinations are supported by the record and entitled to our
deference. See Cesare, 154 N.J. at 412-13.
Additionally, we are not convinced that any alleged error by counsel
prejudiced J.A. such that the outcome of the fact-finding hearing would have
been different as required under Strickland's prejudice prong. Accordingly, J.A.
has failed to establish ineffective assistance of counsel, and we discern no basis
to disturb either the September 2024 or June 2025 orders.
To the extent that we have not addressed all of J.A.'s ancillary arguments,
we conclude that they are without sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-3805-24 19