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)

• Court: New Jersey Superior Court Appellate Division
• Decided: October 19, 2017
• Docket: A-1224-15T3
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.

2 A-1224-15T3 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.

3 A-1224-15T3 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).

4 A-1224-15T3 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 5 A-1224-15T3 [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 6 A-1224-15T3 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

7 A-1224-15T3 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 8 A-1224-15T3 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 9 A-1224-15T3 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 10 A-1224-15T3 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.

11 A-1224-15T3